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Same-sex couples to support Court review on marriage

Lawyers for two same-sex couples in Utah who wish to marry and a married same-sex Utah couple seeking to have the state recognize their marriage in Iowa will be filing papers in the Supreme Court urging review of the new appeal by state officials in the case of Herbert v. Kitchen.

The Utah case, filed on Tuesday, was the first same-sex marriage lawsuit to reach the Justices after a 13-month wave of lower court rulings striking down state bans.   On Thursday, the National Center for Lesbian Rights — part of the legal team for the three same-sex couples who won the Utah case in lower courts — indicated that a brief supporting review will be filed.  The team, of course, will be urging the Court to uphold their victory.

Under Court rules, the couples’ brief is now due on September 4.   The planned position could enhance the prospects that the Utah case will be heard by the Court in the Term opening in October.   The Court quite often grants review of cases where both sides support it.

On Tuesday, the couples’ lawyers had reacted to the state appeal by saying they would take the stance that “will best advance our goal of winning for all Utahns the freedom to marry the person they love, and to have their marriages treated the same as other couples’ marriages.”  They now apparently have concluded that the Utah case provides a proper one to put the basic constitutional issues before the Justices.

Also pending at the Court now is a separate appeal by a county clerk in Oklahoma, seeking review of lower court rulings striking down that state’s ban on same-sex marriage.  On Friday, the state attorney general in Virginia is scheduled to file a third appeal on the issue.  Although Virginia officials believe their ban is unconstitutional, they are continuing to enforce it until there is a final decision on its validity.

When Utah officials filed their petition for review, they argued that their case “is the ideal vehicle” for settling the constitutional issue of state power to ban same-sex marriage and refuse to recognize existing state same-sex marriages.

They gave eight reasons why the Court should choose this case for review: The Justices are already familiar with this case after issuing two temporary orders dealing with the Utah ban; top state officials are united in defending their state’s ban; the lower courts agreed that the Utah ban was not adopted out of “animus,” or hostility, toward homosexuals; the lower court rulings in the case illustrate the  fundamental clash between competing visions of what marriage is;  this case raises both issues of state power regarding sane-sex marriage;  the case does not have in it the procedural flaw that led the Supreme Court last year to decide it had no authority to rule then on the constitutionality of a state ban on same-sex marriage (the California ban known as “Proposition 8”); there is no need to leave it to lower courts to continue issuing rulings on the issue since arguments on both sides are now well known, and, finally, the advocates on both sides of the Utah case are experienced and capable.




Recommended Citation: Lyle Denniston, Same-sex couples to support Court review on marriage, SCOTUSblog (Aug. 7, 2014, 7:57 PM),