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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."
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