The state of Utah, preparing to take its case against legalized same-sex marriages to the U.S. Supreme Court in a few weeks, finds itself facing a need to go to the Justices earlier to keep its options open on another front in that controversy.
Such moves are expected in the next week as part of a closely watched case that could bring the same-sex marriage issue back to the nine Justices for the Court's next term, which starts in October.
On Sunday night, the state attorney general’s office said, in a statement, that it would appeal lower federal court rulings that recognized about 1,300 same-sex marriages that took place for a two-week period in Utah. The marriages stopped after a Supreme Court order put a stop to more same-sex marriages in Utah in January. The marriages started in December 2013 after a federal judge struck down the Utah same-sex marriage ban in a case called Kitchen v Herbert.
“The State recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen v Herbert is resolved,” said Missy Larson, a spokeswoman.
Larson also said the state was prepared to file an Application for Stay to the United States Supreme Court “in the coming days to avoid uncertainty.”
Last Friday, the U.S. Court of Appeals for the Tenth Circuit indicated it would force the state to recognize the 1,300 marriages, pending appeal to the U.S. Supreme Court. Utah officials have until next Monday to file an appeal to the Court to stay the 10th Circuit’s ruling until other issues can be settled.
Utah officials must then decide how they will take their case against same-sex marriages in general to the Supreme Court in the next few months. The petition to the Supreme Court in this matter would most likely happen by late September.
Utah’s moves will be closely watched since nine states have seen their same-sex marriage bans overturned by judges after the Supreme Court’s 2013 ruling in the United States v. Windsor case.
On Sunday, U.S. attorney general Eric Holder said in an interview that the Justice Department will file a brief with the Supreme Court, that supports same-sex marriages, if Utah proceeds with its appeal, as expected.
Currently, 19 states and the District of Columbia have laws or court rulings that permit same-sex marriages. In all, the same-sex marriage states represent 44 percent of the U.S. population.
States such as Utah, Kentucky, Kansas, Colorado, Texas, Virginia and Michigan are appealing court rulings that struck down their same-sex marriage bans as unconstitutional.
In all, 31 states have laws or constitutional amendments on the books that ban same-sex marriages, and nine of these states are contesting recent court rulings that cited the Windsor decision as precedent to strike down the laws.
In its Windsor decision, Justice Anthony Kennedy said in his majority decision that the Court wasn’t ruling on same-sex marriage as a constitutional right.
But Justice Antonin Scalia said in his dissent in United States v. Windsor that the same-sex marriage bans would face legal issues based on the language used in the majority’s decision.
“As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘ “bare . . . desire to harm” ’couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said last June.
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