Conservative states emerge as battleground on same-sex marriage

Published: Wednesday, May 14 2014 11:55 p.m. MDT

Idaho joined a growing list of some of the nation's most conservative states in which federal judges have struck down bans on same-sex marriage.

Matt Gade, Deseret News

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SALT LAKE CITY — Idaho joined a growing list of some of the nation's most conservative states in which federal judges have struck down bans on same-sex marriage.

When U.S. District Judge Robert Shelby overturned Utah's voter-approved marriage law, the reaction ranged from outrage: "How could this happen in Utah?" to jubilation: "If it can happen in Utah, it can happen anywhere!"

Though in the public discourse on gay marriage much is made of a state's political or social leanings, they aren't in play in the courts.

"It would really be improper (for a judge) to weigh that," said Cliff Rosky, a University of Utah law professor who supports gay marriage.

Utah, Oklahoma and Idaho are among states with voter-approved laws defining marriage as between a man and woman that courts have found unconstitutional. But just because a state has conservative voters doesn't mean a judge's decision would reflect the culture of the state.

"These are states where it's pretty clear that the voters would, certainly not in the short term, have repealed marriage laws and redefined marriage. It's not entirely surprising that they've been targeted as states where the courts would have to force the issue," said Bill Duncan, president of the Marriage Law Foundation, which favors traditional marriage.

No state or federal judge has opposed gay marriage since the U.S. Supreme Court last summer allowed gay and lesbian couples to marry in California and upended the Defense of Marriage Act's ban on federal benefits to legally married same-sex couples.

Several of those states are politically or socially conservative or both. But as Rosky notes, "we have to remember that largely only conservative states are left."

In defending its marriage law, Utah contends the Supreme Court recognized in the DOMA decision that states have the power to define and regulate marriage. The state has argued in court that it has the authority to adopt its own vision of marriage and that its law doesn't discriminate against men or women.

But Rosky calls the states' rights argument "window dressing" on the real argument. The only argument is whether the law, regardless if passed by voters or the Legislature, violates the 14th Amendment guarantees of equal protection and due process, he said.

"If it does, it falls. If it doesn't, it stands," he said.

Duncan criticized the wording judges are using in their same-sex marriage opinions, saying they're not so much legal analyses as they are briefs supporting a position. Rather than taking the role of umpire, judges are acting more like players, he said.

"It underscores the fact that this is the first round," Duncan said. "Everybody knows, including the judges, that this is going to be decided at a higher level."

Seventeen states and the District of Columbia allow gay marriage, while 73 lawsuits are pending in 32 states, including Alaska which had its first case filed Monday, according to the advocacy group Freedom to Marry. Marriage law cases are now pending in all but South Dakota, North Dakota and Montana.

The ruling in Utah was the first of 12 in favor of same-sex marriage since the DOMA decision.

"From Idaho to Arkansas, Utah to Michigan, the courts are affirming that there is no good reason for government to deny marriage to committed couples," Evan Wolfson, president of Freedom to Marry, said in a statement after the Idaho decision.

In her ruling Tuesday, U.S. District Magistrate Judge Candy W. Dale echoed decisions in other federal cases around the country and called Idaho's arguments for the ban unfounded. She ruled that gay and lesbian couples can get married starting at 9 a.m. Friday.

"This case asks a basic and enduring question about the essence of American government: whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority," Dale wrote. "… Idaho's marriage laws deny same-sex couples the economic, practical, emotional and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status."

Idaho Gov. Butch Otter asked Dale to stay her decision until all appeals are complete, but the judge denied the request Wednesday. Otter now intends to seek an emergency hearing and stay from the 9th Circuit Court of Appeals.

Also Wednesday, the Arkansas Supreme Court rejected the state's request for a stay of a county circuit judge's ruling last week that overturned Arkansas' constitutional ban on gay marriage.

Email: romboy@deseretnews.com, Twitter: dennisromboy

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