Utah is going directly to the nation’s highest court to challenge an appellate ruling that gay couples have a constitutional right to marry, the state attorney general’s office announced Wednesday.
If the U.S. Supreme court decides to take the case, it will be the first time the top court considers gay marriage since justices last year struck down part of the federal Defense of Marriage Act.
“It is a milestone that when the Supreme Court reconvenes in October, there will be at least one (gay marriage) petition pending,” said Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide.
The high court is under no obligation to the take the case, and it could wait for rulings from one or more of the five other appellate courts with gay marriage cases pending, legal scholars say.
But legal experts predict the nation’s top court will consider a gay marriage case sometime in 2015 or later.
Utah’s appeal is of a June 25 ruling from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, which found states cannot deprive people of the fundamental right to marry simply because they choose partners of the same sex. The 2-1 decision marked the first time a federal appeals court weighed in on the matter. The panel immediately put the ruling on hold pending an appeal.
The Utah case is certain to pique the Supreme Court’s interest, but the justices usually look for cases that involve split rulings from federal appeals courts, said Douglas NeJaime, a University of California-Irvine law professor.
The 4th U.S. Circuit Court of Appeals heard arguments about Virginia’s ban in early May, and a ruling is expected soon. Arguments are scheduled for August and September in two different courts for cases out of Michigan, Ohio, Kentucky, Tennessee, Nevada and Idaho.
“My best guess it that the court will hang onto this for a while and see what happens,” NeJaime said. “There are so many cases now, it will have a pick.”
William Eskridge, a Yale University law professor, also doesn’t expect a quick decision from the high court. The Supreme Court is under no deadline to make a decision and knows other appellate decisions are coming, he said.
Utah Attorney General Sean Reyes’ office said in a statement the appeal will be filed in the coming weeks, to get “clarity and resolution” on the matter. The decision to go directly to the Supreme Court means a review from the entire 10th Circuit Court is off the table, no matter what the high court decides.
Gov. Gary Herbert has said the state already budgeted for a need to defend the law before the Supreme Court. It is expected to cost another $300,000 to have three outside attorneys handle the case – the same amount it cost to take the case to the federal appeals court.
The Supreme Court’s landmark ruling last summer allowed married same-sex couples to receive the same federal benefits as other married people, but did not specifically address whether gay marriage is a constitutional right.
Since then, lower courts have repeatedly cited the decision when striking down gay marriage bans. The latest such ruling was Wednesday, when a state judge struck down Colorado’s gay marriage ban. That ruling is on hold pending an appeal.
In the Utah case, the 10th Circuit upheld a lower court’s decision that overturned a 2004 voter-approved gay marriage ban. More than 1,000 same-sex couples wed in Utah after the ban was struck down and before the Supreme Court issued a stay.
The same thing happened in Indiana, where several hundred same-sex couples married during a two-day window in June. On Wednesday, Indiana state officials said they won’t recognize those marriages – the same decision Utah made.
The conservative Sutherland Institute of Utah applauded the state for appealing to the highest court, saying in a statement that it gives states the chance to “defend marriage as society’s way to encourage a married mother and father for every child.”
Plaintiff Moudi Sbeity called the decision to take the case to the Supreme Court “wonderful news.” He and his partner, Derek Kitchen, are one of three couples who sued over Utah’s gay marriage ban.
“We are one step closer toward having our families recognized in our home state,” Sbeity said. “It’s definitely a case our Supreme Court needs to hear. The faster we can move on this, the better for all of us.”