SALT LAKE CITY — A federal appeals court shot down Utah's arguments against same-sex marriage, but the dissenting opinion might give the state something to pursue going forward.

Bill Duncan, a lawyer who heads the Sutherland Institute's Center for Family and Society, said he believes the 10th Circuit Court of Appeals' split decision Wednesday opens some new opportunities for the state as it appeals to the U.S. Supreme Court.

Still, as University of Utah law professor Cliff Rosky points out, 10th Circuit Judge Paul J. Kelly is the only judge so far in 19 cases across the country to conclude that state laws defining marriage as between a man and a woman are constitutional.

"That's something new. They have one judge," said Rosky, who supports gay marriage.

A three-judge panel found marriage is a fundamental right under the 14th Amendment, and ruled that access to marriage cannot be denied to same-sex couples. It was the first federal appeals court to rule on the issue.

"A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union," Judge Carlos F. Lucero wrote for the two-judge majority. He was joined by Judge Jerome A. Holmes.

The court stayed its ruling in anticipation of an appeal to the Supreme Court. The state has 90 days to petition the court to hear its case.

In his dissent, Kelly wrote that the Constitution is silent on the regulation of marriage and that power is reserved to the states, albeit consistent with federal constitutional guarantees.

Duncan pointed out that the court, more explicitly than U.S. District Judge Robert J. Shelby did in striking down Utah's gay marriage ban, stated there was no animus or hostility on the part of the state or voters in approving the law.

"Courts do not sit in judgment of the hearts and minds of the citizenry," according to the majority opinion. "Our conclusion that plaintiffs possess a fundamental right to marry and to have their marriages recognized in no way impugns the integrity or the good-faith beliefs of those who supported Amendment 3."

"Presumably, the state won't need to spend as much time rebutting the idea that voters were acting out of an irrational motive of hatred," Duncan said.

History of marriage

He also said the state would be able to argue that the 10th Circuit is creating a new fundamental right that is not based on the history and tradition of the nation, which is what the Supreme Court requires when a new right is recognized.

The 10th Circuit opinion says, "To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage."

Duncan also said he found persuasive Kelly's argument that decisions about regulating marriage should be left to the states and voters. If the Constitution doesn't say anything about it, that means it's a state issue, he said. Two-thirds of Utahns approved Amendment 3 in 2004.

"Depending on how much the court feels bound by that reasoning, they could very well rule in favor of the state on that ground," he said.

10th Circuit judges Lucero and Holmes, though, wrote that protection and exercise of fundamental rights are not matters for opinion polls or the ballot box.

In written and oral arguments, the state contended that Amendment 3 ensures reproduction and foster child-centric marriages where children are raised by their biological mothers and fathers.

The court rejected those assertions, saying such laws deny to the children of same-sex couples the recognition essential to stability, predictability and dignity. They discourage children from being recognized as members of a family by their peers, it said.

The 10th Circuit came to that conclusion largely based on what the Supreme Court found in the Windsor case last summer. The justices struck down the federal Defense of Marriage Act in that case.

"Those arguments have nothing to do with federal or state power. They're about child welfare and parenting," Rosky said. "If the Supreme Court wasn't persuaded in Windsor, why would they say, 'Now we're talking about states. Now we can see how these laws are not harming children.'"

Appeal coming

The Utah Attorney General's Office said it intends to appeal to the Supreme Court. It also has the option to request a review from all eleven active 10th Circuit judges. In a statement Wednesday, the office said it has not decided whether to seek that review.

But a state can not pursue them simultaneously, and there is risk involved either way.

Rosky said he doesn't understand why the state would want to skip right to the Supreme Court because it could simply decline to hear Utah's case, meaning the 10th Circuit decision stands.

On the other hand, he said, it would be difficult for the state to get five of the eight remaining 10th Circuit judges to side with Kelly.

Six of the 11 judges are Democratic appointees, while five are Republican. But that's no indication on how they would rule. Holmes was nominated by George W. Bush and ruled in favor of same-sex marriage.

A 10th Circuit "en banc" review would also slow the case reaching the high court.

"If the attorney general is interested in trying to get this case to the Supreme Court first, the attorney general would be well-advised to bypass the issue of en banc," said Lyle Denniston, a journalist who has covered the Supreme Court for 56 years.

Utah Attorney General Sean Reyes has not publicly commented on that, but Gov. Gary Herbert has.

Asked again Thursday whether he wanted to avoid taking the time to have the full 10th Circuit review, he said there "needs to be some analysis. I'm not the legal expert here as far as the process or the arguments. But for me personally, I would like to get it to the Supreme Court as soon as possible."

During the taping of his monthly news conference at KUED Ch. 7, Herbert said even though the state has 90 days to decide how to proceed, "I don't know why we can't make that decision and come to agreement on that in the next 30 to 45 days."

Denniston said Utah has some good arguments for its case to be heard in the Supreme Court.

The 10th Circuit's split decision makes it appealing because it lays out both sides of the issue. The case also has a track record with the court because it stayed Shelby's decision that allowed gay marriages in Utah for a brief time.

"An argument that Utah could make, which is because of the Mormon combination of attitudes and history in the state, is this is as good a case for arguing the traditional view of marriage from a religious perspective rather than a hostility to gays perspective," Denniston said.

Also, he said the state's lead counsel, Gene Schaerr, is well-respected in the Supreme Court. Schaerr quit his job at a high-powered Washington, D.C., law firm to defend Utah's marriage law before the 10th Circuit. The attorney general's office paid him $250,000 through the 10th Circuit appeal but has not said whether it would retain him for further appeals.

"I have no reason to doubt his expertise," Herbert said. "The attorney general and his legal team will do that analysis and make that determination and I'm sure that they'll let me know and at least an opportunity to have that discussion with the attorney general."

Even if the Utah cases reaches the Supreme Court first, it doesn't mean the justices would hear it first. It could wait for cases wending their way through other federal appellate courts and then decide which one to hear.

Contributing: Lisa Riley Roche

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