Utah will take same sex marriage fight to SCOTUS

This could be the ballgame.

The Utah attorney general’s office announced Wednesday that it will appeal the 10th Circuit Court’s decision last month upholding same-sex marriage to the U.S. Supreme Court.

Wednesday was the deadline for the state to seek a full-court review by all 12 judges of the 10th Circuit Court, but, according to a statement from the attorney general’s office, Utah will instead push onward to the U.S. Supreme Court.

The announcement came as dozens of Utah families delivered more than 3,800 petitions to Gov. Gary Herbert’s mansion, asking the state to pull back its appeal of same-sex issues on which judges — both state and federal — have already ruled.

This includes Utah’s landmark Kitchen v. Herbert case, the first in the nation to topple a state ban on gay marriage, as well as a case over whether or not the state is obligated to recognize the nearly 1,300 same-sex marriages performed in the wake of the Dec. 20, 2013 decision by a federal district court judge in Utah striking down the states ban on same-sex marriages.

The timing of the state’s announcement Wednesday was “interesting,” said Brandie Balken, executive director of Equality Utah, who attended Wednesday’s march.

“We don’t really know if the Supreme Court will take this up or they won’t,” Balken said. “Unfortunately, today we have families, couples, children who are living in legal limbo.”

A statement from the Utah attorney general’s office reiterated the state’s call for “clarity” and “resolution” on the issue of same-sex marriage.

“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 State Supreme Court in the coming weeks,” according to a statement from the attorney general’s office. “Attorney General Sean 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 10th Circuit made its ruling two weeks ago, so Utah isn’t wasting any time. SCOTUS doesn’t have to accept Utah’s appeal – if they decline, it simply means that the 10th Circuit Court’s ruling stands and would be the end of the line for Utah and I presume the other states in the Tenth Circuit – but at least some marriage equality proponents would like to see SCOTUS take it up. Freedom to Marry put out a statement saying if by doing so they could “swiftly move to end marriage discrimination across the country”, instead of just in these few states. If SCOTUS does decide to sit this one out, they may be forced to take action later if a different appeals court, like say the Fifth Circuit issues a contradictory ruling. We’ll just have to wait and see.

If SCOTUS does take this up, that could set the stage for a ruling from them in 2016, or possibly late 2015. That in turn might make the 2016 Presidential election an even bigger deal.

So Ohio Senator Rob Portman is considering a run for president, and he claims his support for gay marriage would be a plus in a general election, allowing Republicans to make an economic case to key demographics that are culturally resistant to the GOP. “You can’t become a national party unless you do a better job reaching those between 18 and 30,” Portman says.

This raises the possibility of a scenario that Republicans who agree with Portman — and believe the party must evolve on gay marriage to stay in step with the country’s cultural and demographic shifts — might want to start worrying about right about now.

It’s not hard to imagine that Senator Ted Cruz might make precisely the opposite case from Portman, making the case that the party must reaffirm its support for “traditional marriage” key to his GOP presidential primary run. This could come after the Supreme Court has declared a Constitutional right to gay marriage — which Cruz would then be vociferously calling on Republicans to help roll back.

Gay advocates believe lower court rulings overturning state gay marriage bans on Constitutional equal protection grounds could portend an eventual SCOTUS ruling that enshrines a national right to gay marriage. That could happen in time for the 2016 primary.

That would amount to a powerful declaration that this debate is, or should be, culturally and legally settled. But at that point, unrepentant foes of gay marriage could seize on the ruling to redouble their call for a Federal Marriage Amendment to the Constitution defining marriage as between a man and a woman. Such a measure was introduced by House Republicans as recently as last year. And Senator Cruz supports the idea.

Yes, leave it to Ted Cruz. Do what he says, Republicans! Follow him all the way over that cliff!

Anyway. In other same sex litigation news, a judge in Colorado has struck down that state’s marriage ban. I’ve lost track of how many such wins in a row the good guys have had, but it’s a lot. The biggest prize of them all may be coming soon.

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