Will Utah Be The Big One?

Another marriage equality case is headed for 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.

The court doesn’t have to take the case, of course, but Denniston explains why they might choose to:

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.

But there is no such conflict between courts regarding this particular case, so the justices might prefer to hold off:

While most observers expect the high court to take up the issue of marriage equality within the next few years, the Associated Press notes that the court has a history of declining to consider cases without divergent rulings from lower courts. In the Kitchen case, a federal trial judge and the 10th Circuit both ruled that the state’s ban on same-sex marriage is unconstitutional. If the Supreme Court declines Utah’s request to hear the case, those lower rulings will stand, definitively declaring Utah’s marriage law unconstitutional and striking down the voter-approved law.

Some legal experts, however, doubt the court will turn it down:

“I think the Court will take the case. Since [U.S. v.] Windsor, all of the lower courts that have ruled have struck down laws prohibiting same sex marriages,” said Erwin Chemerinsky, the Dean of the University of California, Irvine School of Law. “Perhaps without a split in the lower courts, the Supreme Court will wait. My prediction, though, is that the Court knows the issue needs to be resolved and will take it.” And if the Court does hear the case, all eyes will be on Justice Anthony Kennedy, not simply because he’s the traditional swing vote, but because he has written all three decisions in Supreme Court history that advanced gay rights. “I also predict that the five justices in the majority in Windsor will be the majority to declare unconstitutional laws that deny marriage equality to gays and lesbians,” Chemerinsky said.

Also yesterday, Alito denied without comment a county clerk’s plea to stop same-sex marriages in Pennsylvania. “That appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted,” Denniston adds in an update. And, in other good news, a judge struck down Colorado’s marriage equality ban yesterday, though the decision is stayed pending appeal. The speed of all this is simply staggering.