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"The U.S. Supreme Court has not, in recent decisions, articulated exactly the standard that should be used when you deal with these types of discriminatory laws," said attorney Peggy Tomsic, who represented the Utah plaintiffs. That is why, she added, the judge said he could not strictly rely on the Windsor decision analysis and "just did a traditional rational basis review" of Utah’s law.
"Whether it is our case or some other case, there will be a time the Supreme Court takes one of these cases and determines what the standard is," she said. Bill Duncan, director of the Center for Family and Society at the conservative Sutherland Institute, said Shelby’s decision "clearly" provides such an opening to test whether the Windsor ruling is an anomaly or "Roe v. Wadein slow motion," where federal judges take a cue and one-by-one get rid of state statutes like Utah’s.
Trib Talk: Gay marriage comes to Utah
Federal District Judge Robert Shelby’s ruling that struck down Utah’s Amendment 3 touched off a political firestorm and a mad rush by LGBT Utahns seeking marriage licenses to county clerks’ offices across the state.
On Monday at 12:15 p.m., Jennifer Napier-Pearce discusses the legal, cultural and political repercussions of the opinion with Brigham Young University law professor Lynn Wardle, University of Utah law professor Clifford Rosky, Q Salt Lake editor Michael Aaron and Salt Lake Tribune reporter Brooke Adams.
You can join the discussion by sending questions and comments to the hashtag #TribTalk on Twitter and Google+, or submit comments in the comment section below this story.
While it didn’t seem to matter to Shelby, Duncan said, the question of whether federal courts are going to allow states to decide whether or not to permit same-sex marriage is "the core of what should be considered from here."
He said there were several "strange" aspects about the decision, including the speed with which Shelby made it and his "uncritical" acceptance of "every" claim the plaintiffs made.
Herbert on Friday called Shelby an "activist judge" who was trying to circumvent public consensus. And in the 10 years since voters approved Amendment 3, there have been only slight gains in support for gay marriage in Utah, according to public opinion polls.
A survey of 526 Utah voters conducted in 2012 by the Center for the Study of Elections and Democracy, based at the LDS Church’s Brigham Young University, found just 28 percent support gay marriage — up from 25 percent in a similar poll conducted in 2004. The biggest change was in support for civil unions — also banned by Utah’s Amendment 3 — which went from 25 percent in 2004 to 43 percent in 2012.
The BYU group noted the shift in Utah voters support for recognition of gay relationships occurred between November 2004 and January 2009, but researchers said they could not explain what was behind the change.
A separate poll of Utah voters by Public Policy Polling, based in North Carolina, conducted in 2011 found similar support for gay marriage, but noted that among voters ages 18-29 views were nearly split.
According to a July 2013 Gallup poll, 54 percent of Americans believe same-sex marriage should be recognized by law as valid.
But the bottom line of Shelby’s ruling is that ultimately public opinion does not matter, Rosky said, and while federal judges are cautious about overriding state law, it doesn’t mean they never do it.
"There is the will of Utahns and the will of Americans," Rosky said. "Nothing in Utah law is allowed to violate the Constitution."
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