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Trib Talk: Utah legal scholars gauge effects of DOMA ruling
Utah law unaffected; language in ruling may leave openings for change.
First Published Jun 27 2013 01:54 pm • Last Updated Oct 31 2013 12:56 pm

Two Utah law professors said during Thursday’s Trib Talk the two Supreme Court rulings on gay marriage this week will not immediately impact Utah’s Amendment 3, which bans same-sex marriage in the state.

However, Lynn Wardle, a law professor at Brigham Young University, said while the rulings on the Defense of Marriage Act and the lack of a ruling on California’s Proposition 8 are important, Utah’s law defining marriage as between one man and one woman has not changed.

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"I think Amendment 3 is still very strong legally," Wardle said. "Whether in five years there will be further developments that will erode the basis for Utah’s ruling, we can’t predict."

The high court struck down one of two key provisions of DOMA in its Wednesday ruling. Section 3 of the act allowed the federal government to deny benefits to gay couples married in states allowing it. Section 2 of DOMA, Wardle said, stays intact and allows states with gay marriage bans to not recognize marriages of couples that wed elsewhere and move to states with bans.

"Federal government can’t impose its view on family law on the states. Rather, it has to respect states’ decisions of family law," Wardle said.

University of Utah law professor Clifford Rosky said he was surprised by the strong language delivered in the court’s majority ruling on DOMA.

"They said that DOMA injures, demeans and stigmatizes same-sex couples, and that it harms and humiliates children who are being raised by same-sex couples," Rosky said. "And that was why they struck it down, because it violated the Fifth Amendment, equal protection and due process."

The courts delivered 5-4 rulings on both cases, with several justices ruling differently in the two cases. Justice Anthony Kennedy wrote the court opinion on DOMA. He was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice John Roberts Jr. wrote the majority opinion on Proposition 8 — the LDS Church-backed voter amendment banning gay marriage in California. He was joined by Justices Breyer, Ginsburg, Kagan and Scalia.

"I agree with Justice Scalia in his dissent that the only thing that was missing here was actually a case or controversy involving a state law because the Prop 8 case got dismissed. We didn’t have the sweeping ruling that we otherwise might have had."


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The two took questions during the live video chat at sltrib.com from Trib Talk moderator Jennifer Napier-Pearce as well as Salt Lake Tribune readers and followers on Twitter and Google+.

Married couples can get more than 1,100 federal benefits, Rosky said. After Wednesday’s rulings, couples in 12 states and Washington, D.C., are immediately eligible for benefits that were previously denied to same-sex couples.

The two spoke for an hour, and Wardle gave his opinion on where the language provided in the rulings could leave Utah vulnerable to future changes in gay marriage law.

"Will that be reconsidered in light of some of the broad language?" Wardle asked. "As a matter of the narrow holding, no, Utahns can still refuse to recognize same-sex marriages. As a matter of broad language [in majority opinion] it’s possible that there will be challenges."



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