WASHINGTON — Although the filing isn’t expected for weeks, the Utah Attorney General’s Office announced Wednesday it will take the issue of same-sex couples’ marriage rights back to the Supreme Court.
In June, the 10th Circuit Court of Appeals ruled that Utah’s ban on same-sex couples’ marriages is unconstitutional. Wednesday is the deadline for the state to ask the full appeals court to rehear that case, a process called an “en banc” rehearing, and Attorney General Sean Reyes’s office announced it will not do so.
The attorney general’s office will, however, take the case directly to the Supreme Court, asking the justices to hear the appeal. The case, if taken by the justices, would present a second opportunity in recent years for the justices to declare that all state bans like the Utah one are unconstitutional, leading to nationwide marriage equality.
“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,” Herbert’s spokeswoman, Missy Larsen, said in a statement. “Attorney General 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.”
Utah officials had said they would appeal the case, one way or another, so the decision Wednesday is not a big surprise, but the decision to go directly to the Supreme Court makes a difference in the timing of how the marriage issue will proceed across the nation.
In addition to the Utah case, the 10th Circuit also has heard a case involving Oklahoma’s marriage ban. The 4th Circuit Court of Appeals has heard a case involving Virginia’s marriage ban, and the 6th Circuit and 9th Circuit courts of appeals have scheduled hearing in cases involving marriage laws in Hawaii, Idaho, Kentucky, Michigan, Nevada, Ohio, and Tennessee. The 5th Circuit and 7th Circuit courts of appeals have cases involving Indiana and Texas’ marriage laws pending.
Although the petition for a writ of certiorari will only be filed in the Utah case “in the coming weeks,” it’s possible the lawyers and parties in other cases will try and get their case before the Supreme Court as well. After the first certiorari petition was filed at the Supreme Court in the various DOMA challenges back in 2013, lawyers in several other cases filed petitions for certiorari before judgment — or, before the appeals court even rules on the matter. The same scenario will likely play out here, as the lawyers have aggressively pushed forward on the path back to the Supreme Court.
The Supreme Court is on recess now for the summer, and it isn’t likely to consider any certiorari petition until late September. Even then, the court doesn’t need to take a case. Its docket is primarily an optional one, and the court could choose to let the lower court decisions stand without Supreme Court review. Only four justices need to vote to take a case, though, in order for it to be heard, and at least four justices already voted once to take a marriage case when they took the appeal of California’s Proposition 8. Even though they eventually dismissed that appeal on a technical ground, there were the four votes, at least, to hear the case initially.
Now, the country will be back on marriage watch, with updates coming regularly over the coming months as parties make their case as to why the court should or should not take any of the various cases, with the earliest likely word from the Supreme Court coming early this fall.
If the court does take the Utah case — or another one — the briefing schedule will begin, with the “friends of the court” giving their input and, likely, the Obama administration weighing in as well. Then, if the court accepts a case before mid-January, oral arguments will be held by late spring and everyone will be back on the front steps of the Supreme Court awaiting a decision in late June 2015.