Unsurprisingly, the State of Utah announced that it intends to appeal the recent decision by the 10th Circuit Court of Appeals striking down the state’s ban on same-sex marriage to the U.S. Supreme Court:
The Utah Attorney General’s Office announced Wednesday that it will appeal the 10th Circuit Court’s decision last month upholding same-sex marriage to the U.S. Supreme Court.
The state will not seek a full-court review by all 12 judges of the 10th Circuit Court, according to a statement from the attorney general’s office.
“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 State Supreme Court in the coming weeks,” a news release said. “Attorney General Sean 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.”
On June 25, the 10th Circuit Court ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.
By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.
What this means, of course, is that the Supreme Court will have a same-sex marriage case before it when it returns for the new term in October. As a preliminary matter, the Justices will need to determine if they will accept the appeal to begin with, something that can happen with the assent of at least four of the Justices. Theoretically, the Justices could chose to avoid the matter, at least as it is presented by this particular case. That has certainly happened before with other cases touching on different issues, most notably with a recent marked uptick in denials of appeal for cases involving Second Amendment issues. However, as I noted last week, whether it is this case or any of the others that are likely to make their way to the nation’s highest court before the end of the summer, it strikes me as unlikely that the Court will be able to avoid the issue completely. It is simply too much of a far reaching social and legal issue for that strategy to work. Additionally to the extent the members of either the conservative or liberal wing are looking for the “right” time for the Court to hear a case, this would seem to be that time. For conservatives especially, the way the legal tide is going would suggest that waiting any longer would make the odds of a decision upholding state laws banning same-sex marriage fairly unlikely.
Assuming the Court grants the appeal, we’d likely see the oral argument sometime early in 2015, possibly in March which seems to have become the month in which the Court schedules argument in what ends up being its “high profile” cases of the term, with a decision coming down by the end of next June. Between now and then, no doubt, there would be much discussion and analysis of the arguments made by both sides, along with prognostication about a potential outcome. Already, many legal experts are predicting that we will see same-sex marriage legalized nationwide within the next year. Based on how the legal arguments of the proponents and opponents of same-sex marriage bans have been treated by a wide range of judges since Windsor was handed down, I tend to agree that this is the most likely outcome. The ultimate question, really, is what side of this issue Justice Kennedy will come down on and, while he was careful to be circumspect in his opinion last year, there have been many signs over the years that he has been moving in this direction. It is Justice Kennedy, after all, who has been the author of the Court’s three most important gay rights decisions over the past twenty years. It started with Roemer v. Evans, a case in which a 6-3 Court struck down a state referendum that barred local jurisdictions from passing laws barring discrimination based on sexual orientation. Seven years later, in Lawrence v. Texas, Kennedy was at the front of a 5-4 decision that found laws criminalizing sodomy to be unconstitutional, over a blistering dissent from Justice Scalia. Then, last year, Kennedy wrote the opinion in United States v. Windsor that set in motion the chain of events that brings the Utah case to the court now. Given that record, it would be a little surprising to see Kennedy back track on the positions he’s taken over two decades, positions that have gradually evolved to the point they reached last year. In the end, though, it will all come down to what the Court decides, and we won’t know that for about another eleven months.
