UPDATED 5:02 p.m. In another development on same-sex marriage Wednesday, Supreme Court Justice Samuel A. Alito, Jr., denied a Pennsylvania county clerk’s plea to stop such marriages in that state. The Justice cited the Court’s order last month denying a postponement request regarding same-sex marriages in Oregon; that application was by a private organization. Alito’s action appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted. A federal judge struck down the state ban, and state officials declined to appeal. The Schuylkill County clerk sought to appeal in their place, but that move has now been turned down at all three levels of the federal court system. The Pennsylvania case had no direct link to the Utah case discussed in the post below.
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Utah state officials will go to the Supreme Court in the “coming weeks” in a bid to revive the state’s ban on same-sex marriage, they announced Wednesday. In a statement by Missy W. Larsen, the Utah attorney general’s chief communications officer, the state said it had opted to pass up a request for the U.S. Court of Appeals for the Tenth Circuit to reconsider en banc a three-judge panel’s ruling in June nullifying the ban.
This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages. The Tenth Circuit was the first federal appeals court to issue such a decision (see this post).
Here is the full statement issued in the Utah case: “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. 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.”
With the case going to the Justices via such a petition, the Court will have complete discretion whether to review the Tenth Circuit ruling, or pass it up. Utah officials are almost certain to argue that the Court should take up the issue promptly based on the argument that there is now a conflict among federal appeals courts on the constitutionality of such bans.
The Eighth Circuit upheld such a ban, but that was in 2006, seven years before the Supreme Court’s Windsor decision — a ruling that many judges have said changed the legal landscape for review of those state laws. In the Windsor decision, which involved only a federal law, the Court indicated that it was not taking a position at that time on the validity of state laws forbidding same-sex marriages.
On the same day that it issued the Windsor decision, the Court chose not to decide on the merits a plea to revive California’s ban, “Proposition 8.” It did so by ruling that the sponsors of that ballot measure did not have a legal right to pursue an appeal to defend the proposition. As a result of that decision, though, “Proposition 8” was nullified because a federal trial judge’s ruling against it went into effect, making California the largest state in the nation where same-sex marriage is now permitted.
The Supreme Court has seen the Utah same-sex marriage issue before. In January, the Justices issued an order temporarily blocking a federal trial judge’s ruling against the state ban, pending review of the case by the Tenth Circuit. That review then went forward, with the three-judge panel splitting two to one on June 25 in finding the ban unconstitutional.
The panel, however, has put its decision on hold, and said it would remain suspended until the state had a chance to take the case to the Supreme Court. Wednesday was the final deadline for Utah to ask the Tenth Circuit to rehear the case en banc, and the state has now chosen not to do that.
Another federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, is expected to rule shortly on the constitutionality of Virginia’s ban. That case has been handled in the Fourth Circuit by the legal team of David Boies and Theodore Olson, two high-profile lawyers who had led the court battle against California’s “Proposition 8.” Also involved in the Fourth Circuit case were lawyers for the American Civil Liberties Union and Lambda Legal, a gay rights advocacy group.
The Tenth Circuit may also rule shortly on another same-sex marriage case, involving Oklahoma’s prohibition on such marriages. That case was heard by the same three-judge panel as the Utah case.
Between the time that a federal judge struck down the Utah ban and the day the Supreme Court put that ruling on hold, some 1,300 same-sex couples were married in Utah. The validity of those marriages is now under review by the Tenth Circuit in a separate case.
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