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Utah marriage case on way to the Court (UPDATED)

UPDATE Thursday 12:27 p.m.  The Utah attorney general said in a statement that there may be a delay of “a few days” in seeking a stay from the Supreme Court, because of the time needed to coordinate with outside counsel.



The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages.  State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.

In a two-page order, a two-judge motions panel of the Tenth Circuit found that a stay was not warranted, expressing some uncertainty that the state’s position against same-sex marriage would ultimately prevail in court.  The judges set the case (Kitchen v. Herbert (Circuit docket 13-4178)) for expedited review, with a briefing schedule to be issued shortly.

A request to the Supreme Court for a delay of the ruling by U.S. District Judge Robert J. Shelby of Salt Lake City would go first to Justice Sonia Sotomayor, who is the Circuit Justice for the geographic area that includes Utah.  She would have the option to act alone or to refer the issue to her colleagues.

The state’s planned plea to the Supreme Court would be the first time the issue of same-sex marriage had returned to the Justices since their rulings in late June — one of which, United States v. Windsor, provided the basic constitutional reasoning that Judge Shelby applied in nullifying Utah’s state constitutional amendment against same-sex marriages — even though the Windsor decision was not a ruling on state authority to bar such unions.

It could be a significant test of whether the Court is ready to confront the power of states to ban same-sex marriages — an issue they explicitly did not resolve in those June decisions.

Recommended Citation: Lyle Denniston, Utah marriage case on way to the Court (UPDATED), SCOTUSblog (Dec. 25, 2013, 1:04 AM),