Supreme Court likely to rule on traditional marriage law
DOMA • BYU, U. professors disagree on what the justices ultimately will do.
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As Brigham Young University law professor Lynn Wardle sees it, traditional marriage could come down to "political whims."

He testified before Congress 16 years ago in favor of the Defense of Marriage Act, or DOMA, defining marriage as the legal union of one man and one woman.

But the 1996 federal law has been challenged, and many legal experts said its fate will likely be decided by the Supreme Court.

The nine justices meet on Friday to decide which cases to hear in the coming year.

The question: Will marriage continue in the traditional definition of DOMA or will gay marriage change it?

"Politics have changed, and we've had a recent election, and that sends a political message," Wardle said Thursday. "Something has not changed and that's the Constitution. If something was constitutional 16 years ago, it still is."

Even so, he said he recognizes that the nation has been leaning toward a more liberal view, which could affect the court, especially with recent developments: President Obama being re-elected and in favor of gay marriage, along with voters supporting gay marriage for the first time in Maine, Maryland and Washington.

"That's a significant development," Wardle said. "The states that did legalize are blue [Democratic] states and they already had civil unions, a small step and already down that road. That isn't like Utah."

There now are nine states that offer same-sex marriage, including Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont, plus the District of Columbia.

Wardle said Justice Anthony M. Kennedy is the Supreme Court member with a reputation for watching political signals, even though he does not always follow along with them.

"The other justices do so more diplomatically," Wardle said.

Legal experts consider Kennedy to be the pivotal justice on deciding the DOMA issue.

"It's a question. You have four following the political whims, so it's whether they can get a fifth justice," Wardle said.

Under DOMA, each state can ignore the marriages of gay people in other states. The federal law also does not recognize same-sex marriages as they relate to insurance benefits for government employees, Social Security survivors' benefits and the filing of joint tax returns.

Two federal appellate courts agreed with trial courts that DOMA violates the civil rights of legally married gays and lesbians, which makes it an issue for the Supreme Court to decide, legal experts said.

Clifford Rosky, a University of Utah associate professor of law who specializes on the issue, said a majority of Americans support gay marriage. He is a board member of Equality Utah, the state's largest LGBT-rights group.

In May, a Gallup poll found 50 percent of Americans believe same-sex marriages should be recognized by law as valid with the same rights as traditional marriages — down slightly from 53 percent last year. Forty-eight percent opposed gay marriage in the same poll.

In 1996, Gallup found 68 percent of Americans opposed gay marriage, while only 27 percent supported it.

"Public opinion has shifted," Rosky said.

Supreme Court rulings don't note changes in public opinion, but, Rosky said, "the justices do consider trends in state law and often they do take note of those changes."

He highlighted two Supreme Court cases where the justices referred to states' laws when making a decision, one case allowing interracial marriage and the other overturning sodomy laws.

In Loving v. Virginia (1967), the court wrote: "Over the past 15 years, 14 States have repealed laws outlawing interracial marriages. ..."

And in Lawrence v. Texas (2003), the court wrote: "The 25 states with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which four enforce their laws only against homosexual conduct."

Bowers was the 1986 case in which the Supreme Court upheld sodomy laws, while in Lawrence, the court overruled Bowers.

Both Wardle and Rosky agreed the political landscape of the country has changed in the past 16 years, especially when it comes to gay marriage.

Rosky was more forthcoming in his prediction.

"My bet is they [the Supreme Court] will strike down DOMA," he said.

Depending on the justices' legal reasoning, the consequences of striking down DOMA could range from legalizing gay marriage nationwide to simply leaving it up to each state.

Also on Friday, though much less likely, the justices will decide if they will rule on California's Proposition 8 case, a voter-approved ban on same-sex marriage.

rparker@sltrib.com

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