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Utah AG filing Kitchen appeal directly to U.S. Supreme Court

In an email to FOX 13 News’ Ben Winslow, Utah Attorney General spokesperson Missy Larsen said that Utah’s Attorney General’s office will not seek en banc review of the 10th Circuit Court of Appeals ruling last month that Utah’s Amendment 3 and other anti-marriage equality laws were unconstitutional. Attorney General Sean Reyes will, however, file a petition directly to the U.S. Supreme Court.

The statement:


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 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.

Today was the last day the state could have asked for an en banc review — meaning a hearing by the entire panel of 10th Circuit Court judges. Attorneys representing the Utah couples suing the state said back in June that they would rather have the case bypass the en banc stage and go right to the Supreme Court.

As the statement was released, thousands of signatures were being delivered to Utah Gov. Gary Herbert at the Governors Mansion by Equality Utah.

The 10th Circuit Court ruled on June 25 that Utah’s laws and constitutional amendment outlawing same-sex marriage are in violation of the U.S. Constitution. The 3-judge panel upheld U.S. District Judge Robert Shelby’s ruling of Dec. 20, 2013. Shelby was the first district court judge and the 10th Circuit Court of Appeals was the first circuit court in the country to rule that anti-marriage equality laws and voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

The circuit court ruling remains stayed until a ruling by the U.S. Supreme Court. If that court does not take the case, the ruling will stand and marriage equality in Utah and other states within the circuit court’s jurisdiction would have to allow same-sex marriages in their state and honor those performed in other states.

SCOTUS Blog, which closely follows the U.S. Supreme Court, said they believe the court will act on the Utah petition by late this year, likely grant it, and begin to hear arguments in March, 2015. They expect a ruling of 5-4 in June, 2015.

Other experts believe the Supreme Court will wait to hear any same-sex marriage case until there is a split in the rulings of the circuit courts. They point to the 5th Circuit as having the potential to rule against marriage equality.

Utah could argue that such a split already exists, as the 8th Circuit ruled against same-sex marriage in 2006. That case, however, was decided before the Supreme Court’s landmark Windsor ruling in 2012.

Local organizations are reacting to the statement.

“Since Windsor, courts across the country have unanimously ruled that laws like Amendment 3 discriminate against LGBTQ couples and families. Going directly to the Supreme Court does expedite the process of moving toward equality, but in the face of overwhelming judicial decisions in favor of same-sex marriage, it is another slap in the face to LGBTQ families,” the Utah Pride Center said in a statement. “There is no reason to pursue this to the Supreme Court when governors around the country have chosen to take high-road and accept the decisions of the lower courts.”

“The Supreme Court may or may not take up this case. In the meantime loving committed couples, their families, and their children remain in limbo. Governor Herbert has the power to give resolution to this matter today by doing what other republican governors are doing all across the nation – don’t appeal the decision and let the marriages stand,” Equality Utah said in a statement. “It’s regrettable that on the one hand Governor Herbert wants Utah to be a destination for economic growth, and at the same time he is choosing to send the message to the world that Utah is a hostile place for anyone that doesn’t fit a very narrow mold of what it means to be a family.”

National Center for Lesbian Rights Legal Director Shannon Minter is thankful for the expedition of the case.

“We want this case to move forward to a final resolution as quickly as possible. Every day, loving and committed same-sex couples and their families in Utah are being harmed by the continued enforcement of measures that deny them equal dignity, security and protection—even though both the federal district court and the Tenth Circuit Court of Appeals have held they violate fundamental constitutional guarantees,” Minter said. “We look forward to the day every family in Utah has the freedom to marry, and we will work hard to make that happen as soon as possible.”

Democratic candidate for Utah Attorney General Charles A. Stormont, said he would drop the case.

“This appeal is an enormous waste of money and we should be fighting to protect people’s rights, not to take them away. The state has no business dictating how people build their families, and the State should never tell children or their parents that they are second class citizens,” Stormont said in a statement. “As your attorney general, I will protect everyone’s rights and not pick and choose which rights to defend. From the right to marry who you love to the right to bear arms, my pledge to Utahns is that I will stand up for all your constitutional rights and follow the law, not political trade winds.”

Michael Aaron

Michael Aaron is the editor and publisher of QSaltLake. He has been active in Utah's gay and lesbian community since the early 80s and published two publications then and in the 90s.

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