Could Gov. Gary Herbert’s comments hurt Utah in its gay marriage case?

First Published      Last Updated May 23 2014 02:01 pm

The short answer: Not so much.

Although Gov. Gary Herbert's comments at a Thursday press conference have sparked outrage and ridicule on social media, a University of Utah law professor said it's unlikely to have any impact on the state's effort to defend its same-sex marriage ban.

U.S. District Judge Robert J. Shelby did not find there was any animus, or ill will, in the state's voter-approved ban on same-sex marriage when he overturned the amendment back in December, but the plaintiffs' attorneys have contended there was.

Several Utahns have voiced their ire over Herbert's comments — that other states not defending their gay marriage bans is the "next step toward anarchy," and that "what you choose to do with your sexual orientation is different than what you're born with as your race" — but legally, they may not amount to much.

University of Utah law professor Cliff Rosky, who also sits on the board of Equality Utah, said because the Kitchen v. Herbert case has been decided and appealed, no new evidence can be presented.

Even if it could, Rosky went on, it's unlikely Herbert's comments could be used to prove bad intent.

"The governor is not the one who passed Amendment 3," Rosky said, "the voters of Utah did. To prove animus in a trial, would you have to question all Utah voters on the stand?"

Rosky noted that the lawsuits over same-sex marriage and Utah's refusal to recognize the nearly 1,300 marriages performed in the state during a 17-day window when such marriages were legal are likely not the last the state will see on the issue of gay rights.

If future plaintiffs were looking to show discrimination or prejudice by the state, the governor's comments could possibly come into play.

— Marissa Lang



What is Animus?

According to Black’s Law Dictionary animus is the intention behind a law. If it can be proved a law was created with purposeful ill will or with no good justification, there could be grounds for animus claims in a case.