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Joy, jeers as Supreme Court gives gay marriage a boost

Published July 3, 2013 12:18 pm

Cheers and jeers • Gay-rights advocates celebrate the 5-4 rulings, but Hatch lashes out at the action.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • Married gay couples can file taxes together and share health benefits, while, in the nation's most populous state, same-sex partners will once again be legally able to say "I do."

In a pair of landmark 5-4 rulings Wednesday, the Supreme Court handed gay-rights supporters major victories and also signaled that it could, in the immediate future, take up the question of whether state bans — like Utah's — on same-sex unions violate the Constitution's guarantees of equal protection and due process.

Even the high court's staunch conservative, Justice Antonin Scalia, noted in his dissent that the majority's rhetoric in rejecting the 1996 Defense of Marriage Act, a law banning federal recognition of same-sex marriage, could be just the first step.

"Leaving the second, state-law shoe to be dropped later, maybe next [Supreme Court] term," he wrote. "But I am only guessing."

A large gathering of gay-marriage supporters sweated through their clothes Wednesday outside the high court, hoisting signs demanding equal rights and flying rainbow flags in anticipation of the rulings.

Seconds after the court tossed a section of DOMA, cheers rippled through a large crowd like a wave. People cried and embraced.

"I'm so proud of my country right now," said David Baker, a gay, active Mormon from Salt Lake City who held a sign that read, "Gay Mormons for Marriage Equality."

But as news of the court's twin opinions dripped out, it wasn't sweeping enough for some.

"It doesn't change my life as much as I would have hoped," said Baker, 24. "I would love to be able to go to Salt Lake and get married in my hometown with all my friends and family being able to be there."

Justices weren't prepared to go that far. They tossed out the Proposition 8 case involving California's voter-approved ban on gay marriages on procedural grounds in a strange mix of the court's left and right flanks. The impact of that ruling — backed by Scalia and conservative Chief Justice John Roberts with liberal justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer — is that gay marriages are once again legal there.

The DOMA decision fell on more traditional ideological lines, as did the reactions to the rulings.

Democrats embraced the decisions with jubilation while Republicans offered a muted disappointed response.

"The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd," said Senate Majority Leader Harry Reid, a Nevada Democrat and a Mormon. "I'm glad that today the Supreme Court recognized that the federal government has no business picking and choosing which American couples get the legal recognition and protections they deserve."

President Barack Obama, the first sitting U.S. president to endorse gay marriage, called DOMA "discrimination enshrined in law."

"It treated loving, committed gay and lesbian couples as a separate and lesser class of people," Obama said. "The Supreme Court has righted that wrong, and our country is better off for it."

Sen. Orrin Hatch, a Utah Republican Mormon who voted for DOMA in 1996 and still defends it, noted the law passed overwhelmingly with support from both parties. He had predicted the court's ruling but was jarred by its phrasing, which he felt impugned the law's supporters.

"For them to indicate that the intentions behind it were less than desirable is BS," Hatch said. "People just wanted to protect the institution of marriage, Democrats and Republicans. Now that this has become a political football, the Supreme Court has issued its opinion with inappropriate language."

Freshman Rep. Chris Stewart, another LDS Utah Republican, said he was "saddened" by the rulings and worried that they created uncertainty for states, such as Utah, that want to continue to ban gay marriages.

"When we support traditional marriage, we are defending our culture and the Judeo-Christian values upon which our nation was founded," said Stewart, who added that "we need to treat all people with love and kindness."

Utah's other GOP lawmakers responded in kind, expressing their "disappointment" and their ongoing support for marriage between a man and a woman, while Rep. Jim Matheson, D-Utah, who is LDS and opposes gay marriage, declined to react to the rulings other than to point out that they didn't impact the state's ban.

The Utah-based Church of Jesus Christ of Latter-day Saints, which financially backed California's Proposition 8 banning gay marriage and argued in a court filing that it should be upheld, said through a spokesman that the court's ruling revealed troubling questions about the democratic and judicial systems because the state declined to defend a law supported by a majority of residents.

"Regardless of the court decision," said spokesman Michael Otterson, "the church remains irrevocably committed to strengthening traditional marriage between a man and a woman, which for thousands of years has proven to be the best environment for nurturing children."

Even so, the issue isn't so clear-cut for some Mormons, particularly the younger generation.

Kolbie Astle, a 20-year-old Utah State University student interning in Washington, held down a spot outside the high court Wednesday to witness history.

"I have a lot of friends who are gay, and I'm a Mormon," she said. "I just think that people who have come to terms with who they are and are still able to practice their religion and able to have that relationship with God, I really respect that."

More and more Americans have come to embrace same-sex unions, according to polls that show support shifting dramatically during the past decade.

Among them, Brett Tolman, a former U.S. attorney for Utah who co-wrote the Utah Pride Center's friend-of-the-court argument and who saw Wednesday's high court rulings as a sign that the justices may be moving toward gutting state bans on gay marriage.

"This is the beginning of acknowledging equal marriage," Tolman said, "and I am more hopeful than disappointed."

In the DOMA ruling, Justice Anthony Kennedy actually mirrored the Utah Pride Center's argument to the court that barring rights for same-sex couples gives them a "second-tier marriage."

"The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the state has sought to dignify," Kennedy wrote. "And it humiliates tens of thousands of children now being raised by same-sex couples."

In his dissent, Scalia scolded his colleagues for their reluctance to say that the government's powers don't include defining marriage.

"Such a suggestion would be impossible," Scalia wrote in a footnote, "given the federal government's long history of making pronouncements regarding marriage — for example, conditioning Utah's entry into the Union upon its prohibition of polygamy."

Like Scalia, Sen. Mike Lee, R-Utah, a former Supreme Court clerk and a Latter-day Saint, worries that the justices in the future may strike down state-based marriage laws such as Utah's voter-endorsed Amendment 3.

"I hope," he said, "the court will respect its own decision and the constitutional rights of Utahns and citizens of every state to legislate in their own states according to their beliefs and values."

Rep. Jason Chaffetz, R-Utah and a Mormon, echoed those concerns, saying he fears the high court is "moving in the wrong direction" and emphasizing that the issue should take prominence in future presidential elections.

The Sutherland Institute, a Salt Lake City-based conservative think tank, vowed to keep fighting for Utah's ban on same-sex marriage.

"For now, nothing changes for Utah in support of faith, family and freedom," institute President Paul Mero said in a news release, "each is preserved, though each will continue to come under legal, political and cultural attack from homosexual activists."

Family Research Council President Tony Perkins, an opponent of gay marriage, highlighted the fact that the court didn't redefine marriage nationwide.

"Time is not on the side of those seeking to create same-sex 'marriage,' " Perkins said in a statement that included the word marriage in quotes. "As the American people are given time to experience the actual consequences of redefining marriage, the public debate and opposition to the redefinition of natural marriage will undoubtedly intensify."

tburr@sltrib.com, mcanham@sltrib.com, imarkham@sltrib.com

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Join Trib Talk's Jennifer Napier-Pearce at 11:30 a.m. Thursday as she moderates a discussion about the Supreme Court's historic gay-marriage decisions.

The segment will feature University of Utah law professor Clifford Rosky and Brigham Young University law professor Lynn Wardle.

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