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Same-sex marriage issue reaches the Court early (UPDATED)

UPDATE 4:32 p.m.   Virginia officials will be submitting their own petition to the Supreme Court on Friday, Attorney General Mark R. Herring said in a filing in the U.S. Court of Appeals for the Fourth Circuit.  Although state officials take the view that Virginia’s ban is unconstitutional, as the Fourth Circuit ruled, they have said they will continue to enforce it while it remains on the books.  The state thus urged the Fourth Circuit to put its ruling on hold while the case moves to the Supreme Court. The attorney general said he hoped the Justices would consider the case at their private Conference on September 29, before the new Term formally opens.

FURTHER UPDATE:  The case page for Herbert v. Kitchen, in which Utah officials are asking the Court to uphold that state’s ban on same-sex marriage, is now available here.  


A little over a year after the Supreme Court set off a wave of lower court decisions striking down state bans on same-sex marriage, the legal contest over the constitutionality of those laws returned to the Supreme Court at midday Tuesday.  Utah state officials, filing six weeks ahead of their deadline, asked the Court to uphold their state’s ban.   This was the first of several cases on that question likely to reach the Justices in the coming weeks and months.

The Court is in summer recess now, and probably would not act on the Utah case until the Justices return to the Court building this fall, for a new Term that opens on October 6.   The same-sex couples who successfully challenged the Utah ban will have a chance to respond to the state’s appeal before the Justices act.  But it now appears nearly certain that the Court will take on the issue, and reach a decision by next summer.

The Utah case, titled Herbert v. Kitchen (docket 14-124) raised a single constitutional question: “Whether the Fourteenth Amendment prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”

Phrased that way, the case would put before the Justices both the question of state power to forbid gays and lesbians to marry and the question of state power to refuse to recognize same-sex marriages performed elsewhere for state residents.   Most of the lower court rulings over the past thirteen months have ruled against the states on both issues.

The Utah case is the first of what might be called the “Windsor sequels” to reach the Court.  A year ago in late June, in the case of U.S. v. Windsor, the Supreme Court struck down a key part of the federal Defense of Marriage Act in a historic decision on the rights of same-sex couples who already were married and were seeking access to federal marital benefits. The Court ruled that they had an equal right to those benefits.

Although that decision expressly avoided deciding anything about the power of state governments to ban same-sex marriage under any circumstances, court after court since then has relied heavily upon the reasoning of the Windsor ruling as the basis for invalidating bans like Utah’s.

The Supreme Court had actually agreed, in late 2012, to review a California case that raised the basic marriage question that Utah has now newly posed.  In doing so, however, the Court on its own raised the separate question of whether the defenders of a California ban had a legal right to appeal the case.  The Court, in a ruling issued on the same day as the Windsor decision, found that the defenders did not have that right, so it did not pass upon the validity of the California ban known as “Proposition 8.”

After a so-far-unbroken string of lower court rulings since then, the number of states that now allow same-sex marriage has risen to nineteen, along with Washington, D.C.   A total of seventeen cases are now pending in federal courts of appeals, and other cases are moving through federal trial courts and through state trial and appeals courts.

Two federal appeals courts have issued rulings in that string — the U.S. Court of Appeals for the Tenth Circuit, in the Utah case and in a separate case from Oklahoma, and the Fourth Circuit, in a case from Virginia.  County clerks in Oklahoma and Virginia have said recently that they will be taking those cases to the Supreme Court.

Utah Attorney General Sean Reyes noted in a statement that his staff had filed the case in the Supreme Court “a full month and a half” before a September 23 due date.  The state, he said, “welcomes a speedy grant of the petition and a Supreme Court merits decision, as all Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.”

In the state’s petition, it argued that the Tenth Circuit ruling striking down the Utah ban “deprives Utah citizens of the ‘fundamental right’ to ‘act through a lawful electoral process,’ ” citing language from a Supreme Court decision this past term dealing with voters’ rights on a different constitutional issue.  In addition, the petition contended, the Tenth Circuit decision “ignores that the Constitution says nothing about how states must define marriage.”

That ruling, the state’s lawyers added, conflicts directly with a 2006 decision by the Eighth Circuit upholding a Nebraska ban.

The issue in the case, the petition added, “is of enormous importance,” and it noted that the Supreme Court had agreed earlier to confront the issue in the “Proposition 8” case.

Moreover, it added, the Supreme Court has twice issued temporary orders — in this case on same-sex marriage rights, and in a separate Utah case on recognition of existing same-sex marriages — that barred lower court rulings from going into effect.  Those orders, the state argued, signaled that “there is at least a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari, and a fair prospect that a majority of the Court will vote to reverse the judgment below.”

Recommended Citation: Lyle Denniston, Same-sex marriage issue reaches the Court early (UPDATED), SCOTUSblog (Aug. 5, 2014, 4:11 PM),