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Utah's ban on gay marriage 'in jeopardy,' says U. law prof

Published June 27, 2013 8:11 am

Fallout • But Attorney General John Swallow says rulings strengthen state's defense of Amendment 3.
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A pair of U.S. Supreme Court rulings will not affect Utah's Amendment 3 ban on same-sex marriage — for now.

But one legal expert found "surprising" language in the majority opinion on the federal Defense of Marriage Act (DOMA) that hints at a future challenge for the ban in Utah and more than 30 other states.

A lawsuit taking on Amendment 3 already is pending in Utah's federal court, and a group backing the plaintiffs says such cases are "more important than ever."

"I think Amendment 3 is in jeopardy when the Supreme Court says that laws that are meant to discourage same-sex marriage are demeaning, stigmatizing and humiliating to children," said Clifford Rosky, a University of Utah law professor and an Equality Utah board member. "That is not the way you talk about a law that is good."

The opinion, written by Justice Anthony Kennedy, states that DOMA placed same-sex couples in a "second-tier" marriage that "demeans" a relationship a state has sought to dignify.

"And it humiliates tens of thousands of children now being raised by same-sex couples," the 5-4 majority said. "The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

The opinion also said DOMA brings financial harm to children of same-sex couples by raising the cost of access to health care and denying or reducing their Social Security benefits.

"That is very strong language," Rosky said. "When someone says you're humiliating children, you lose. That is why you see opponents of same-sex marriage declaring this a major loss. ... If you win the argument about the kids, you win the whole thing."

Still, Rosky agrees with Utah Gov. Gary Herbert and Attorney General John Swallow that the rulings have no immediate impact on Amendment 3, which eight years ago added language to the state's constitution that allows only for marriage between a man and a woman.

"[The justices' action] simply preserves the status quo," Swallow said, "because they don't say much about what we're defending in the state of Utah."

The DOMA case focused on one section of the federal law and did not challenge parts allowing states to refuse to recognize same-sex marriages authorized by other states.

Swallow said it was too soon to say what effect the DOMA ruling would have on same-sex couples with valid marriages from other states who reside in Utah — a question he believes the U.S. Supreme Court will tackle at some point and is discussed in dissenting opinions.

Chief Justice John Roberts, who wrote one dissent, noted the "historic and essential authority" of states to define and regulate marriage is left untouched by the decision. States may adopt a "definition of marriage that differs from that of its neighbor," he said, and "that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions."

Justice Antonin Scalia said DOMA "avoids difficult choice-of-law issues that will not arise absent a uniform federal definition of marriage."

He also took issue with the notion that defending marriage between a man and a woman in some way condemned, demeaned or humiliated those who prefer other arrangements.

"Scalia said another shoe is waiting to drop and may drop in the next year," Rosky said, "because once you start talking about laws against same-sex marriage as demeaning, stigmatizing and hurting children, the writing is on the wall."

But "until the Supreme Court weighs in and decides that states can't define marriage as between a man and a woman, I fully expect our law to be what it is," Swallow said. "This has not gone to the merits yet. They had the opportunity to do so in Prop 8 and DOMA and declined to take [those cases] head-on on the merits. So we are left where we were before, because Utah is one of those majority states that has decided not to allow same-sex marriage."

Both Swallow and Herbert said that, while marriage is a states' rights issue, discrimination has "no place in society."

"I hope we can find a path that protects all from discrimination," Herbert said in a statement, "while defending the sanctity of traditional marriage."

Meanwhile, Swallow sees the decisions strengthening Utah's defense against a civil lawsuit challenging Amendment 3.

Rosky expects both sides to quote extensively from the DOMA opinion.

Attorneys for the plaintiffs in the Utah civil lawsuit plan to hold a news conference Thursday; it was unclear whether the couples themselves — Karen Archer and Kate Call; Derek L. Kitchen and Moudi D. Sbeity; and Laurie Wood and Kody Partridge — would attend.

Restore Our Humanity, the group backing the plaintiffs, said the rulings "advance the fundamental right to marriage" but stopped short of resolving the unconstitutionality of discriminatory state laws such as Utah's.

"It is now more important than ever that [such cases] proceed through the courts," the group said in a statement, "to end the unconstitutional discrimination on the basis of sexual orientation, once and for all."

brooke@sltrib.com