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Rolly: Utah’s same-sex appeal is tilting at windmills

By PAUL ROLLY

| The Salt Lake Tribune

First Published Jul 18 2014 12:45 pm • Last Updated Jul 20 2014 02:39 pm

Dan Berman is a longtime attorney who has practiced in many legal arenas and, through experience, knows a thing or two about how the U.S. Supreme Court operates.

Berman, along with a number of attorneys who have deep experience with constitutional issues, is blunt about Utah’s chances of getting its appeal of the same-sex marriage decision by Judge Robert Shelby heard in the highest court in the land.

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Gov. Gary Herbert and Attorney General Sean Reyes are tilting at windmills if they think the court will grant their motion for certiorari, asking the court to take its appeal from the three-judge panel at the 10th Circuit Court of Appeals that upheld Shelby’s decision that Utah’s ban on same-sex marriage is unconstitutional.

"The chances of the governor getting a petition for cert granted are remote," Berman says. He notes that judges in various other states also have held same-sex marriage bans unconstitutional and appeals are coming from those jurisdictions as well.

"This involves much more than just one panel’s decision," Berman adds.

And that’s where Utah’s top officials are making a costly mistake, once again.

Berman notes that when another state or states appeal to the Supreme Court, Utah could piggyback on the others’ leads for a fraction of the cost of carrying the appeal on its own.

That’s why the trumpeters’ call from Utah’s capitol has all the trappings of political hoopla more than legal analysis.

It’s happened before, and Utah taxpayers are millions of dollars poorer for it.

The "damn-the-torpedoes-full-speed-ahead" approach the governor and attorney general are taking may come from the seduction of a right-leaning Supreme Court.


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Forget all the other appellate judges. We have right-wingers on the top court like Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts.

But remember, Roberts, the chief justice appointed by former president George W. Bush, broke the tea party’s heart when he upheld most of Obamacare.

Berman and others suspect Herbert and Reyes are playing to the right-wing Republican base, to the peanut gallery, and it’s going to cost the taxpayers a bundle.

The same scenario played out in the 1980s when the Republican-dominated Utah Legislature, dancing to the tune of the moral crusaders, passed a law that allowed state censors to regulate the content of movies on subscription cable television.

Democratic Gov. Scott Matheson, an attorney by trade, vetoed the bill on the grounds that it would be ruled unconstitutional in the federal courts and would be a monumental waste of taxpayer money to defend.

But the hot-blooded right-wing legislators overrode the governor’s veto and the cable TV censorship bill became law.

During the override session, attorneys in the Legislature stood up, one by one, and warned their colleagues that looking at judicial precedents at the time made it clear the bill would be held unconstitutional.

At one point, one of the more animated of the right core of the House roared in disgust: "I’m getting sick and tired of this constitutional crap."

Once the bill became law and ended up in the courts, then-Attorney General David Wilkinson succumbed to the same seduction some fear is befalling Herbert and Reyes.

Ronald Reagan was president and poised to appoint right-wingers once openings on the Supreme Court occurred.

The Rehnquist court already was right-leaning and conservatives with moral causes were optimistic about their chances.

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