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High court's decision raises new questions

Utah lawmaker proposes term 'pairage' to define same-sex unions

SALT LAKE CITY — The U.S. Supreme Court's decision to reject appeals from Utah and four other states with laws prohibiting same-sex marriage raises legal issues some experts say could take decades to resolve.

"I predict this is going to be just like Roe v. Wade in the federal courts for the next five years, 10 years, 20 years. This is going to be case after case after case because making law from the bench is too simplistic. When the Legislature does have to fulfill its responsibility to make the law, there will always be challenges," said Rep. Kraig Powell, R-Heber City.

Utah's state code on marriage, for instance, is titled Husband and Wife.

"We need to start from the very top, change the name of the entire section of code and then figure out all the different places where something different needs to be written or amended," said Powell, who is a municipal attorney for Park City.

He said he's looking at legislation to deal with potential challenges.

James Hanks, a Salt Lake attorney who heads the Family Law section of the Utah State Bar, said the code will need some updates, but custody and other issues related to same-sex marriages will likely be handled by courts "the same as any other."

"The rules will apply the same as any other. The court, for instance with children, they'll be looking at best interest of the kids and the other factors will apply no matter who the parents are," he said.

Lauren Barros, whose family law practice serves many same-sex couples, was on a hike celebrating her birthday when she heard the news.

"For Utahns, it’s wonderful. A lot of people married already during that 17-day window. Now, their marriages are valid — again and enforceable — again," she said. "There were a lot of step-parent adoptions that were pending and they can move forward. We can have hearings on those step-parent adoptions."

Since marriage laws are not uniform nationwide, Barros said she will continue to recommend that gay and lesbian couples seek step-parent adoptions "because there are going to be other states that they might travel to or move to that would not respect the legal relationship between the non-biological parent and the child just because they’re married."

Lynn Wardle, professor of law in the J. Reuben Clark Law School at BYU, said the Supreme Court's decision not to take up the issue of same-sex marriage on appeal was "disappointing and fraught with all sorts of revolutionary implications for life, families and society."

"It does muddy the water. It certainly intellectually muddies the waters," Wardle said.

Wardle predicts that within five years, "it will have played out to force the legalization of same-sex marriage in all states."

But others like attorney Frank Mylar, who drafted amicus briefs filed at the Supreme Court on behalf of the American Leadership Fund, said the Supreme Court's decision "is not a sign to give up or lose heart, rather it is an incentive to redouble our efforts and fight valiantly."

"There are still legal avenues and court cases that will continue to come forward. The 5th and 6th circuit courts of appeals have yet to decide the issue, and the Supreme Court may be more inclined to hear these cases, especially if one of them upholds marriage," Mylar said.

Kellie Williams, a Salt Lake family law attorney in practice for more than 30 years, said leaving the 10th Circuit Court of Appeals ruling in place — which upheld U.S. District Judge Robert J. Shelby's ruling that Utah's voter-approved Amendment 3 defining marriage as between a man and a woman is unconstitutional — means same-sex couples' marriages in Utah are legal and enforceable. It also means courts will be addressing their divorces and custody disputes.

"I think is pretty clear that everything is now going to be applicable to same-gender relationships if they engage in a marriage ceremony," Williams said.

Still, the legal landscape nationwide is unclear, she said.

"I do think it’s a 'stay tuned.' I don’t think the issue is done. By virtue of not taking those five states' appeals, we're now looking at 30 states and D.C. that would make same-sex marriage legal. … So then what are the other 20 states to do? Well, obviously, the Supreme Court didn't want to tell them that, did they?"

Powell said he is proposing legislation that may take a page from other states that define same-sex couples' relationships as civil unions or domestic partnerships.

"I have come up with a word we probably can use and see if the courts will accept. I call it 'pairage.' This would essentially be legal recognition of same-sex relationships," Powell said.

"I think it's an important distinction to draw because I think even same-sex couples would admit that their relationships are going to be different."

Unlike opposite-sex partners, same-sex couples require artificial means to procreate, Powell said.

"Because of that, you have totally different questions about who has parental rights. So I think we actually ought to recognize that for its very obvious nature. We could actually create and call this a different institution," Powell said.

"We call this pairage, the same-sex legal relationship between partners is called pairage. The legal relationship between opposite sex partners is called marriage. We then write our laws."