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Will Utah's ban on gay marriage survive SCOTUS?

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SALT LAKE CITY — The U.S. Supreme Court will likely issue highly-anticipated rulings Wednesday on California's Proposition 8 and the federal Defense of Marriage Act, and Utah officials and legal observers remained skeptical of any significant impact in the state.

Utah Attorney General John Swallow said Tuesday he expected to continue to be embroiled Wednesday in the state's own legal battle over Amendment 3, which defines marriage in Utah as between a man and a woman.

"Really, no one is expecting it to have a major impact," Swallow said of the expected rulings. "We expect that we'll still be able to be in the game to defend our constitutional amendment, because we expect a fairly narrow ruling by the Supreme Court."

The ruling could be as narrow as what lay eyes might see as a technicality. The high court could dismiss Prop 8 based on standing.

"The idea here is that the sponsors of Proposition 8 don't have standing to defend the law, and so the case kind of disappears," explained Clifford Rosky, chairman of the board of directors at Equality Utah and a law professor at the University of Utah.

DOMA could see an equally murky future, if judged from a state's rights premise. Rosky said that would mean states get to decide for themselves whether same-sex couples can marry, or that Congress cannot define marriage for all states.

If those scenarios unfold, then legal observers said not much will, in fact, change in the Beehive State for now.

Of course, reading the legal tea leaves ahead of the rulings is a challenge unto its own.


"This year, the tea leaves have proven to be unreliable," said Deseret News editor Paul Edwards, also a constitutional law scholar.

Edwards said Chief Justice John Roberts already proved to be an unexpected swing vote on the Affordable Care Act Medicaid ruling, and "Roberts' court" has increasingly been one to defend state powers in other cases.

"All represent the court trying to rebalance the inherent powers between what the federal government can say and what the states are doing," Edwards said. "I think we might see some of that coming into the decisions tomorrow, recognizing that perhaps at the federal level, marriage isn't something where the federal government has as much say as the states."

Rosky said regardless of what the rulings are, they only deal with same-sex couples' right to marry.

"There are other rights at stake in the (Lesbian, Gay, Bisexual and Transgender) movement," Rosky said. "One of the most basic rights is the right to be protected from employment discrimination or housing discrimination. That is the right to work and keep a roof over your head. And these cases have nothing to do with that. So no matter what happens in these cases, in many states — including Utah — it would still be legal to fire someone or evict someone simply because they're gay or transgender."

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