The same-sex marriage case that is most familiar to the Supreme Court — from Utah — is close to being ready for the Justices to consider it alone or among other cases for review.  Lawyers for three couples — two who wish to marry, and one seeking official recognition of their existing marriage — on Thursday filed a brief supporting review of the already-filed appeal by Utah state officials.

This is the lawsuit in which the Supreme Court itself on January 6 blocked a federal judge’s ruling in favor of same-sex marriage, to allow time for an appeal.  Since then, the U.S. Court of Appeals for the Tenth Circuit has agreed with that judge, striking down the ban that Utah voters approved by a two-to-one margin ten years ago.

While the Court now has four petitions raising constitutional issues about such state bans, and soon will have a fifth, some of the petitions are moving along more rapidly than others.  The Utah case, the first to reach the Court, may well be ready for the Justices to examine at their first Conference on September 29, just before the opening of the next Term.

The three Utah couples’ lawyers filed their response to the state petition a week before it would have been due, to enhance the prospects that the Court will give it an early look.   If the state now promptly files its reply brief, that would go far toward assuring that early examination.

While each of the four pending petitions has made arguments why one or the other of the cases would be a proper one for review, the lawyers representing the same-sex couples are not vying to push each other’s case aside.

Still, the lawyers in the Utah case did have one argument that cannot be matched in any of the other pending filings:  it is being pursued by the highest officials of the state, the governor and attorney general, and not what the new brief called “ministerial state actors with no independent authority to speak on the state’s behalf or duty to represent all of its residents.”

In the pending case from Oklahoma, the petition was filed by the Tulsa County clerk, who denied marriage licenses to the couples involved.  That clerk, though, does have the backing of the state’s governor.  In the two pending petitions from Virginia, one was filed by a state official in charge of marriage records and the other by a city court clerk, although the state’s attorney general is fully supportive of the claim of a right to same-sex marriage.   Another petition is expected from Virginia, by a county clerk.

Besides suggesting that the Utah case is a proper one for raising the basic constitutional issue of state power to forbid same-sex marriage or to refuse to recognize such marriages that already exist, the couples’ brief said it was a good case for examining what constitutional standard should be used to judge the validity of those prohibitions.

The bulk of the new Utah brief was devoted to trying to answer the arguments that state officials have already put forth in an effort to justify treating same-sex marriages differently from those involving opposite-sex couples.

Under the Court’s current timetable, a case must be distributed to the Justices by September 10 to be considered at the September 29 Conference.  The two Virginia petitions and the Oklahoma petition may also be on track for that session.

Posted in Herbert v. Kitchen, Cases in the Pipeline, Featured, Same-Sex Marriage, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Utah couples support same-sex marriage review, SCOTUSblog (Aug. 28, 2014, 9:42 PM), http://www.scotusblog.com/2014/08/utah-couples-support-same-sex-marriage-review/