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Outcome of same-sex marriage case hard to predict

SALT LAKE CITY — Just where the U.S. Supreme Court will come down on same-sex marriage isn't readily apparent from the aggressive questions justices asked lawyers for both sides Tuesday.

And likely swing voter Justice Anthony Kennedy didn't tip his hand during oral arguments about whether the 14th Amendment requires a state to license a marriage between two people of the same sex. The court also will decide whether a state must recognize legal same sex-marriages performed in other states.

University of Utah law professor Cliff Rosky called trying to guess what the court would do a "dangerous game."

"You can't predict how judges will decide based on oral argument questions," he said.

Still, Rosky, who serves as Equality Utah board chairman, said the day went well for the attorneys representing gay and lesbian couples from Michigan, Ohio, Tennessee and Kentucky.

Bill Duncan, an attorney who heads the Lehi-based Marriage Law Foundation, agrees that it's tough to predict the outcome.

But he said he thought the lawyers for the same-sex couples struggled with some of the justices' questions, while the attorney for Michigan answered confidently and even pushed back at times.

Nevertheless, Duncan said, both sides stuck to their arguments and didn't seem to make any concessions.

Oral arguments are a small piece of the court's decision-making process. They've already read or have been briefed on hundreds of pages of oral arguments from the parties, as well as thousands of pages of friend-of-the-court filings on both sides of the issue.

"It's somewhat unlikely that something was said today that they had never heard or thought of before, so when they probe they're as much trying to say, 'Can you say this in a different way?'" Duncan said.

Kennedy, particularly, asked hard questions of both sides and made statements giving hope and fear to both sides.

He noted that marriage has been understood as the union of a man and a woman for millennia. At the same time, he said that a principal purpose of marriage is to afford dignity to the couples and their children, including same-sex couples.

"If Justice Kennedy is not undecided he sure does fake it pretty well because it was a little bit hard to read him," Sen. Mike Lee, R-Utah, told KSL Newsradio's "Doug Wright Show."

But, Lee said, Kennedy sounded a little more skeptical about legalizing same-sex marriage than he expected. Chief Justice John Roberts, too, could be a swing vote based on his line of questioning, the senator said.

Lee, who worked as a law clerk for Justice Samuel Alito, figures the court based on prior rulings would likely find a constitutional right to same-sex marriage, though he said he's a little less convinced of that after Tuesday's arguments.

Utah is among 37 states and the District of Columbia that permit gay marriage.

Should the Supreme Court find that gay and lesbian couples have a right to marry under the Constitution, nothing in Utah would change. But should the court decide that states can make their own marriage laws, the implications are unclear.

Rosky said the latter result would be "chaos."

"That would be an ugly day," he said.

It would raise a unique question that has never been addressed: Can you unwind a family as a matter of law, Rosky said. It would mean treating gay couples differently, unending litigation and people racing to the courts and the Legislature to protect their rights, he said.

Duncan said he's not sure anyone knows what would happen if the court were to rule in favor of the states.

Utah has a marriage law on the books the defines marriage as the union of a man and a woman, but that is unenforceable right now, he said. But if the Supreme Court sides with the states, "presumably Utah is free to go ahead and enforce its law because the obstacle has been removed."

A federal district court in December 2013 struck down Utah's voter-approved law defining marriage as the union of a man and a woman, saying it violated equal protection guarantees in the 14th Amendment. The 10th Circuit Court of Appeals later upheld that ruling.

The U.S. Supreme Court last October declined to hear the Utah case, making gay marriage legal in the state.

"Although Utah’s case is not one of the four cases heard, Kitchen v. Herbert was necessary in the national dialogue to resolve unsettled law," according to a statement from the Utah Attorney General's Office. "We are pleased that the court has chosen to hear arguments on this historic challenge and to ultimately make it possible for all citizens to have clarity and resolution.”

Utah joined 14 states in an amicus brief urging the Supreme Court to let states decide whether to legalize same-sex marriage.

Troy Williams, Equality Utah executive director, said he was excited that the issue has finally landed in the high court and that the stakes couldn't be higher.

"Every committed same-sex couple should enjoy the same rights and liberties as our heterosexual counterparts. Our nation will become a more perfect union when all Americans enjoy the freedom to marry who they love," he said.

Sen. Orrin Hatch, R-Utah, said the issue is rightly left to states to decide through the democratic process.

"The Supreme Court should not invent a new right to same-sex marriage at the expense of the rule of law," he said in a statement.

Freedom to Marry founder and president Evan Wolfson, who was in the courtroom, said it should be clear to a majority of the justices, as it has been to many lower courts, that there's no reason to justify "perpetuating marriage discrimination any longer."

"Gay and lesbian couples, their children and families, and millions of Americans now look to the court to assure to gay people the Constitution's guarantees of the freedom to marry and equality under the law," he said in a statement.

Email: romboy@deseretnews.com

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