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Opponents of same-sex marriage vow to continue fight to Supreme Court

Published June 27, 2014 9:51 am

Marriage • During rally at SLCC, conservative groups say the battle is about states' rights.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The 10th Circuit Court's ruling on Wednesday in support of same-sex marriage left many couples ready to say "I do" and many protesters rallying to say "I don't."

The 2-to-1 decision from a three-judge panel legalizes same-sex marriage in six states, including Utah, but the judges immediately issued a stay for further evaluation. During the stay, Gayle Ruzicka, president of the Utah Eagle Forum, a far-right conservative group, hopes to do her part in supporting Utah Gov. Gary Herbert in the state's appeal process.

Ruzicka does not support same-sex marriage because she says children are disadvantaged without both a mother and a father. Those rallying with Ruzicka on Thursday night, one day after the ruling, maintain that gay couples can and should form relationships if they choose, but the couples do not merit a marriage license or a civil union.

"They say they want a committed relationship, but a committed relationship doesn't take a license," Ruzicka said. "Nobody's trying to stop them from their relationships."

Those against same-sex marriage want states to be able to determine their own marriage laws. Cherilyn Eager, president of the American Leadership Fund, a political activist group promoting traditional values, said their opposition to same-sex marriage is not "hateful;" it is about protecting state rights.

The American Leadership Fund had planned a gathering in support of traditional marriage at the Larry H. Miller Salt Lake Community College campus in Sandy for Thursday night in anticipation of the ruling. When the decision broke on Wednesday, the conservative group added discussion of it to the agenda. More than 100 people attended the rally, with standing room only.

The conservative group plans "to galvanize and to redouble our efforts and to increase our energy and enthusiasm and our passion" in appealing same-sex marriage in Utah. Eager told those at the rally that it is not too late to change the ruling, which will likely go to the U.S. Supreme Court. She urges supporters of marriage between a man and a woman to not give up the fight, even as it looks discouraging after the 10th Circuit ruling.

While Wednesday's decision was historic because it was the first time a federal appellate court has weighed in on the issue of same-sex marriage, the 2-1 decision also marks the first time a judge has sided with traditional marriage since last June, when the U.S. Supreme Court struck down the Defense of Marriage Act, which barred gay marriage.

"I would say that [the 10th Circuit Court ruling] was not really a surprise at this point," University of Utah law professor Clifford Rosky said Thursday during the Salt Lake Tribune's online program, TribTalk. "We've had 19 courts consider whether states could ban same-sex marriage. And all 19 courts have said no, that the state laws against same-sex marriage are now unconstitutional.

"All but one now agree on that point. The dissenting judge is the first judge since last summer to take any other position."

Bill Duncan, director of the national Marriage Law Foundation, agreed during TribTalk that the 10th Circuit Court ruling was not surprising, but said it was "an interesting wrinkle" that Judge Paul J. Kelly, Jr. delivered a dissenting opinion.

"It is neat to see a judge say, 'I'm going to break from the pack,' " Duncan said.

While Judges Carlos F. Lucero and Jerome A. Holmes said in their majority opinion that their reading of the Constitution shows that the legal rights of married couples has nothing to do with the gender of those in the union, Kelly disagreed, saying that he did not believe the 14th Amendment — which gives equal protection to American citizens — required Utah to extend marriage to same-sex couples.

He noted that the Constitution is silent on the regulation of marriage, and said that power should be reserved for the states to decide.

"If the States are the laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited national government on its head," Kelly wrote.

Kelly also noted that while the U.S. Supreme Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two opposite-gender people, as the issues debated by the Supreme Court dealt with interracial or inmate marriage.

While the majority opinion attacked the state's assertions that same-sex marriage adversely affects children and procreation, Kelly argued that the state should not be precluded from considering procreation when regulating marriage.

"It is also undeniable that the state has an important interest in ensuring the well-being of resulting offspring, be they planned or unplanned," Kelly wrote. "To that end, the state can offer marriage and its benefits to encourage unmarried parents to marry and married parents to remain so. Thus, the state could seek to limit the marriage benefit to opposite-gender couples completely apart from history and tradition."

Marriage does not exist in a vacuum and states have the right to regulate it, the judge added. He said Utah should prevail because the state has shown a rational basis for its decision to ban same-sex marriage — responsible procreation, effective parenting and the desire to proceed cautiously with a new social phenomenon.

Kelly noted that the advent of same-gender marriage was a "very recent" phenomenon, and that for centuries, marriage was universally understood to be between two persons of opposite gender. The state could exercise caution then, he said, because of "unknown outcomes."

"Perhaps someday same-gender marriage will become part of this country's history and tradition," Kelly wrote. "But that is not a choice this court should make."

It remains to be seen how significant this dissenting opinion will be as a likely appeal to the U.S. Supreme Court moves forward, but Carl Tobias, a judicial appointment expert and professor at the University of Richmond, said that "it's always better if you have a unanimous decision."

"I thought Judge Kelly did as well as he could with the arguments on the other side," Tobias said. "I think the majority just didn't agree with him. "

On Thursday, Gov. Herbert expressed uncertainty about whether Utah would prevail in its appeal of the 10th Circuit Court ruling, but said the case should move to the Supreme Court as quickly as possible and, if Utah loses, the state will honor gay marriages.

"We can speculate and suppose what the outcome will be, but we don't know," Herbert said during his monthly KUED news conference. "... I suspect if we appeal to the Supreme Court it will be a split decision again."

Should the justices hear the case and again rule against the state, Herbert said the state will give full recognition to same-sex marriages.

"Once the law is the law of the land, my job is to respect it and enforce it," Herbert said.

The governor down-played the potential expense of going to the Supreme Court. He said the anticipated cost has already been built into state budgets. He also expressed support for Gene Schaerr, the attorney hired by the state to lead Utah's defense of its marriage ban.

Herbert said his own opinion about same-sex marriage is irrelevant to his belief that the appeals should continue, rather it is his belief that a resolution is in the best interest of all sides. If Utah's law had been written "to allow same-sex marriage, I'd be defending that law," he said.

The governor would not say if Utah would seek a review of Wednesday's decision by a full panel of the 10th Circuit, or if the state would just ask the Supreme Court to take the case. He just wants a resolution to the issue.

"This is a significantly important issue, landmark probably in its outcome," Herbert said. "[Same-sex marriage] is not like typical lawsuits out there."

jmiller@sltrib.com Twitter: @jm_miller