(Photo: Diego M. Radzinschi/NLJ)

The state of Utah urged the U.S. Supreme Court on Tuesday to resolve the “immensely important” question of whether states, in accord with the Constitution, can prohibit same-sex marriages.

By filing its petition for review, Utah became the first of three states whose marriage bans were struck down recently by federal appellate courts to reach the justices. Defenders of bans in Virginia and Oklahoma have announced their intentions to file petitions as well.

“We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month-and-a-half before its Sept. 23 due date,” Utah Attorney General Sean Reyes said in a written statement. “Utah welcomes a speedy grant of the petition and a Supreme Court merits decision, as all Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.”

Reacting to the petition, the challengers’ counsel, Peggy Tomsic of Salt Lake City’s Magleby & Greenwood, released a written statement.

“We respect the state’s right to seek review of its own law in the highest court in the land, but we also respectfully, and vehemently, disagree with the notion that states can deny one of the most foundational rights to the millions of same-sex couples living across this great land,” she said. “We look forward to reviewing the petition filed by Utah’s excellent lawyers, and to responding to it in due course.”

Utah amended its laws and constitution in 2004 to ensure that the state would not recognize or give legal effect to same-sex marriages. A legal challenge was brought by a gay couple and two lesbian couples last year.

The Utah petition in Herbert v. Kitchen asks: “Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”

Veteran Supreme Court advocates Gene Schaerr and John Bursch, appointed as special assistant attorneys general, argue that several reasons make the Utah case the “ideal vehicle” for resolving the constitutional question.

The June 25 ruling by a divided panel of the U.S. Court of Appeals for the Tenth Circuit that there is a fundamental right to marry someone of the same sex, they contend, is inconsistent with the high court’s precedents, including U.S. v. Windsor. In Windsor, the justices invalidated the traditional definition of marriage in the federal Defense of Marriage Act.

They claim a direct conflict with the justices’ 1972 decision in Baker v. Nelson, in which the court dismissed an appeal of Minnesota’s same-sex marriage ban “for want of a substantial federal question.” Baker is still binding on lower courts, they write.

The Utah case lacks jurisdictional problems that would prevent the justices from answering the question raised in the petition and there is no suggestion that Utah’s laws are based on animus, they argue. The issue has been “percolating” for 40 years, and there are experienced and capable advocates on both sides, they say.

The state’s petition also emphasizes the high court’s decision last term in Schuette v. BAMN, upholding a Michigan constitutional amendment approved by voters that barred consideration of race in higher education admissions policies. In that ruling, the justices wrote: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

In conclusion, the attorneys for Utah add, “Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the People ratified the United States Constitution. This court should grant the petition and answer, once and for all, the important question presented.”

Contact Marcia Coyle at mcoyle@alm.com.