Orrin Hatch, Mike Lee Diverge on Gay Marriage's Fate in Court

Hatch, right, and Lee see the fate of gay marriage in the courts differently. (Bill Clark/CQ Roll Call File Photo)

A former Republican chairman of the Senate Judiciary Committee is calling legal gay marriage inevitable, while his home-state colleague is not so sure.  

"Lets face it. Anybody that does not believe that gay marriage is going to be the law of the land just hasn't been observing what's going on," Sen. Orrin G. Hatch, R-Utah, told KSL radio on Wednesday. "The trend right now in the courts is to permit gay marriage and anybody who doesn't admit that just isn't living in the real world."  

"But I think it's a portend of the future that sooner or later, gay marriage is probably going to be approved by the Supreme Court of the United States," Hatch said during the interview. "I don't think that's the right way to go. But on the other hand, I do accept whatever the courts say."  

Appearing on the same KSL radio program Thursday, Hatch's junior colleague and fellow GOP member of the Judiciary panel Mike Lee told host Doug Wright he thought the question could rest with Justice Anthony M. Kennedy, calling him the likely swing vote in a future Supreme Court case on gay marriage.  

"I don't know if gay marriage, legal gay marriage, throughout the country is inevitable. What I do know is that it's wrong for these decisions to be made by federal judges," said Lee. "The definition of marriage ... those decisions need to be made by the people of each state, within each state."  

"There's been quite a wave of these rulings, and with those rulings will come a wave of appeals," Lee said. "It's difficult to know which case will come before the court. I suspect one of them will, and it's difficult to predict how it will turn out."  

Lee said he had "a pretty strong sense" that eight of the current justices could split on the issue of whether the Constitution bars states from defining marriage as only between one man and one woman, leaving Kennedy the wild card.  

"Justice Kennedy is one that's more difficult to predict. People read different things into statements that he's made over the years," Lee said. "It could go either way. I do predict this issue will come up before the Supreme Court, and I'm just not sure which way it'll turn out."  

Neither Hatch nor Lee is advocating for a federal mandate on gay marriage, but the two senators were weighing in with their analysis of the legal situation, with a number of federal judges ruling in favor of requiring marriage licenses be issued to same-sex couples. That includes Robert J. Shelby, a federal district judge in Utah.