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When the U.S. Supreme Court hears arguments Tuesday in a landmark case that many expect will legalize same-sex marriage for the nation, Utah attorney Christopher Wharton will have a ringside seat.
Wharton is traveling to Washington, D.C., on behalf of his gay and transgender clients, who he says are jittery about the impact the justices' ruling may have in Utah, where same-sex unions have been legal for less than two years.
"People are still kind of tingling and wondering if there is a way that this can be undone," said Wharton, who will listen from the court's attorneys lounge. "I myself have that nightmare that we wake up and it's a different ruling [than expected] and we have to change everything again."
Gay marriage is legal in 37 states and the District of Columbia a number that has more than doubled since December 2013, when Utah's U.S. District Judge Robert Shelby overturned Amendment 3, the state's same-sex marriage ban, saying it violated 14th Amendment guarantees of due process and equal protection.
Utah appealed the decision twice and lost first when the 10th U.S. Circuit Court of Appeals in Denver upheld Shelby's ruling and again in October, when the nation's high court let stand similar federal appeals-court decisions, effectively legalizing gay marriage in Utah and a number of other states.
The consolidated case now before the top court will consider a ruling supporting gay-marriage bans from the 6th U.S. Circuit Court of Appeals cases from Kentucky, Michigan, Ohio and Tennessee and asks the justices to answer two questions: Does the 14th Amendment require a state to license marriages between individuals of the same sex, and must a state recognize such marriages performed legally in other states?
Utah asked those same questions in its own appeals and has filed an amicus, or "friend of the court," brief asking the high court to leave the decisions about the definition of marriage in the hands of states.
A ruling is expected in June.
The Salt Lake Tribune asked attorneys Clifford Rosky and Parker Douglas for help understanding the pending case and its possible impact on Utah. Rosky is a University of Utah law professor and is on the board of Equality Utah. Douglas is chief of staff for Utah Attorney General Sean Reyes and the state's federal solicitor.
Q • Why is the court hearing this case, but rejected Utah's last year?
Rosky • When the court decided not to hear Utah's appeal, there was no disagreement among federal courts. Every federal appeals court had ruled that state laws that banned same-sex couples from marrying were unconstitutional. Since then, the 6th Circuit reached a different result. On Tuesday, the Supreme Court will hear an appeal to resolve this conflict between lower courts.
Douglas • There is much speculation on this. Many pundits look to Justice Ruth Bader Ginsburg, who expressed reticence for the court to take up policy questions too quickly and has said that decisions seeming to recognize "new" rights rarely have the same force of consensus reasoning as those arrived at through democratic means.
This is usually cited as rationale for not considering Utah's case alone or as one among others. There was a clear split among the courts of appeal before the 6th Circuit's decision, which interpreted the Constitution's Equal Protection Clause to mean at least three different things and the Due Process clause to mean at least two different things.
Obviously, those constitutional provisions cannot have more than one meaning.
Q • What do you think the court should do?
Rosky • The court should clarify that all state laws that ban same-sex couples from marrying are unconstitutional.
Douglas • As argued in Utah's amicus brief, which was joined by 15 other states, Utah believes the court should leave the decision on marriage with the states.
The U.S. Constitution ensures that state citizens have the sovereign authority to govern themselves.
Q • What do you believe the court will do?
Rosky • I believe that the plaintiffs will win, but it's impossible to predict exactly what the court will say.
Douglas • Given that Utah's amicus brief is before the court, I can't really comment directly. I will say, however, that I expect the decision to include things unexpected. Just how unexpected is something that we will wait to see.
Q • Could the court open the door for a new Utah case that would again seek to reverse Shelby's decision?
Rosky • I believe that the court will affirm that same-sex couples have the freedom to marry, so there will be no basis to reconsider Judge Shelby's ruling.
Douglas • That's a question for others. The position of the office of the Utah attorney general is to defend Utah laws and not make them. Making laws is the function of the Utah Legislature, the governor's office and the people.
Q • Could the court legalize same-sex marriage for the whole country?
Rosky • Yes, although same-sex couples already have the freedom to marry in 37 states.
Douglas • Yes and no. Immediately it will affect the states whose cases are pending. If the court reverses the 6th Circuit, it could do so on a number of grounds that may or may not create national uniformity.
Q • Could the court legalize same-sex marriage in some states, but not in others?
Rosky • That does not seem likely.
Douglas • There are many versions of how the court's ruling could do this constitutionally. One possibility is that the court may say states can retain the power to define marriage and recognize it under their own laws, but that all states must also recognize legal same-sex marriages performed elsewhere.
Q • Could gay marriages performed in Utah be voided?
Rosky • In the unlikely event that the Supreme Court allows some states to ban same-sex couples from marrying, this ruling would not affect marriages previously performed in Utah and other states. These marriages would remain valid, and the state would be obligated to respect those marriages for all purposes.
Douglas • There is no open case on that issue now. To answer would require a knowledge of how the Supreme Court will rule and the political will of those in Utah following the decision.
Q • Could same-sex marriages end in Utah?
Rosky • I do not believe the court will rule that states may constitutionally ban same-sex couples from marrying, so there would not be any basis for Utah to reinstitute such a ban.
Douglas • The simple answer is "yes." If the Supreme Court affirmed the 6th Circuit decision, Utah could ask for a declaratory judgment that Amendment 3 and its associated statutes are constitutional.
Q • Will Shelby's ruling in Utah's case play any role in Tuesday's arguments or the court's decision?
Rosky • The arguments will be very similar to the arguments made before Judge Shelby. And, of course, the court will notice that nearly every judge to consider this issue has reached the same conclusion that Judge Shelby reached. That is an extraordinary uniformity of decisions, and it's impossible to imagine that the court will ignore it.
Douglas • It's likely that Judge Shelby's ruling will be cited somewhere in the court's final opinion as at least an early district court opinion. I think it more likely that the court's analysis will address decisions by appeals courts that have ruled on the issue and its own prior cases dealing directly or tangentially with marriage.
U.S. Supreme Court gay-marriage hearing events
Marriage Equality Rally
Piper Down Pub
1492 S. State St., Salt Lake City
5 p.m. Tuesday
Stand Up for Marriage Rally
Utah Capitol Rotunda
7 p.m. Tuesday