Tom Smart, Deseret News
Utah state Sen. Scott McCoy talks during a domestic partner registry debate in February.

As the first gay couples lined up to tie the knot in California, a Utah state senator expressed his desire to do so as well.

"If and when we do, we will be husband and husband under the law and in the eyes of the community in California," Sen. Scott McCoy, D-Salt Lake, said on the Senate Democrat blog.

However, McCoy concedes that in Utah, same-sex marriages won't be recognized because it's banned in the state's law and constitution. And, he adds, he has no intention to challenge that.

"We won't sue, and frankly neither should any other Utah couple," McCoy wrote in the posting. "Utah courts are not likely to lead out on marriage equality for Utah. ... Those first legal recognition battles will be fought elsewhere in more favorable venues."

Earlier this month, the potential for lawsuits led Utah Attorney General Mark Shurtleff to join in an unsuccessful request that the California Supreme Court delay its ruling allowing same-sex marriages until after the November election.

Shurtleff had argued that because California voters could overturn the ruling by constitutionally banning marriage, the state could face "premature, unnecessary, unnecessarily difficult" litigation by couples who wed in the interim.

California is now the second state where same-sex couples can legally wed. Unlike the other state, Massachusetts, there is no residency requirement in California, so couples from other states can wed there.

McCoy didn't immediately return phone calls for comment. Nor did Mike Thompson, executive director of Equality Utah, which posted a statement on its Web site issued by several national advocacy groups, including Lambda Legal and the American Civil Liberties Union, urging couples not to sue.

"We need to start with states where we have the best odds of winning," the joint statement reads. "When we've won a critical mass of states, we can turn to Congress and the federal courts."

The statements are simply part of a long-term strategy by the "genderless marriage" players of cherry-picking courts, says Monte Stewart, president of the Marriage Law Foundation, which supports traditional marriage.

"We want to pick courts that are favorable to us ... we want to pick off the opposition one by one until we build momentum," Stewart said. "There should be no doubt in the mind of anyone that this is their strategy."

Stewart stressed the importance of California's upcoming initiative on marriage. He predicts a "tsunami of litigation" in 48 states, including Utah, if the provision to ban same-sex marriage fails.

"The fight is going to have to focus on the courts and very much is going to have to focus on the ballot measure in California," Stewart said. "In terms of survival of the man-woman institution, passage of the California marriage amendment is a life or death matter."

Sen. Orrin Hatch, R-Utah, also worried about the judicial ruling making laws. In a statement released Tuesday, he urged Californians to "reject this elitist decision" by supporting the ballot measure.

"This is what happens when judges mistake themselves for legislators," he said. "They discover previously unknown rights in constitutional texts. While falsely asserting fidelity to enduring constitutional principles, they substitute their own idiosyncratic notions of right and wrong for the judgments of the people."

While several same-sex couples interviewed by the Deseret News expressed a sense of hope in the California marriage ruling, there doesn't seem to be an expectation of recognition at home, at least not anytime soon.

Elizabeth Clement and Kellie Custen, of Salt Lake, are planning on spending a year in California, but aren't planning on getting hitched there.

"I think it would be more exciting if something were happening here," Clement said. "I think it's going to be a long time."

The couple has considered a ceremony, but both say it would have more meaning in Utah, where their life is. Still, Clement says, "It bothers me I can't extend health benefits to my partner or tuition benefits to my step-kids."

Custen adds, "I really do think that will happen. I've seen, in my lifetime, the rights of African-Americans change and the rights of women change. This is the next frontier of civil rights."

Mark Banford and Noel Reese of Las Vegas see it differently. The couple of eight years discussed their plans to wed in California recently while attending the Utah Pride Festival.

"We're really excited about what's going on in California," Banford said. "Even though it won't count where we're from, we want to be a part of it."


Contributing: Arthur Raymond

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