The state of Utah has decided to go directly to the U.S. Supreme Court in an effort to resurrect its ban on same-sex marriages.
Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act.
A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court.
Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court’s review.
“To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a petition for writ of certiorari to the United States Supreme Court in the coming weeks,” Reyes’ office said in a written statement.
“Attorney General Reyes has a sworn duty to defend the laws of our state. Utah’s constitutional amendment 3 is presumed to be constitutional unless the highest court deems otherwise,” the office said.
The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia’s laws is expected soon. That case is being handled by Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner, the same team that successfully challenged California’s marriage ban.
Utah apparently has been preparing for a high court battle since the beginning of the litigation against its constitutional amendment. As a special deputy attorney general, the state hired veteran Supreme Court advocate Gene Schaerr, who resigned as a partner in Winston & Strawn specifically to take over the defense. He argued on behalf of the state during the April arguments in the Tenth Circuit.
The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015.
Brian Brown, president of the National Organization for Marriage, which has filed amicus briefs supporting the bans in a number of cases, applauded Utah’s decision: “We have been disturbed at the series of federal court actions to invalidate marriage based on a complete misreading of the Supreme Court’s decision in the Windsor case, and we look forward to the U.S. Supreme Court correcting this error.”
Shannon Minter, legal director of the National Center for Lesbian Rights, co-counsel for the Utah couples in Kitchen, said, “We want this case to move forward to a final resolution as quickly as possible. Every day, loving and committed same-sex couples and their families in Utah are being harmed by the continued enforcement of measures that deny them equal dignity, security and protection—even though both the federal district court and the Tenth Circuit Court of Appeals have held they violate fundamental constitutional guarantees.”
Contact Marcia Coyle at firstname.lastname@example.org.