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Experts consider next step for same-sex marriage ruling appeal

By Sam Penrod | Posted - Jun. 26, 2014 at 10:04 p.m.


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SALT LAKE CITY — A day after the 10th Circuit Court of Appeals upheld a federal judge’s ruling allowing same-sex marriage in Utah, questions remain about the state of Utah’s options going forward.

The next step could be an “en banc” appeal of the 2-1 appeals court decision that would have every 10th Circuit judge review the decision. That’s an option if Utah’s attorneys believe they can get more judges to side with their argument that same-sex marriage ban is not unconstitutional.

But it may not be the best option.

“If the attorney general is interested in getting this case to the U.S. Supreme Court first, the attorney general would probably be well-advised to bypass the issue of en blanc,” said Lyle Denniston of SCOTUSblog.com. “It is a split decision. You have a full articulation of the views on each side by the majority and judge Kelly in dissent, and that would be appealing because it would lay out the arguments on both sides to the Supreme Court’s consideration.”

A decision in the 5th Circuit is pending that many legal scholars believe could uphold a ban on gay marriage, which would set up a showdown on the issue that the high court would have to tackle — putting Utah’s case on the docket.

“The Supreme Court has seen this one before,” Denniston said. “Remember, in January, the court imposed a stay on the trial court’s decision and so this is a case that already has a track record in the Supreme Court.”

State officials can also pass the appeals court and directly petition the U.S. Supreme Court.

Supporters of same-sex marriage believe the decision brings them a step closer to having the issue decided once and for all.

Traditional marriage advocates, however, remain optimistic the Supreme Court could still side with their arguments, and that Utah’s case may be the one the high court will consider.

“Utah provides a scenario where you have a state that is willing to aggressively defend the law, and so there are no procedural problems that would keep the Supreme Court from hearing it,” said Bill Duncan of the Sutherland Institute. “So it is a good case in that sense.”

The 10th Circuit must also still rule if Utah must legally recognize the 1,300 same-sex marriages that were performed during the brief window those marriages were allowed in December.

The governor and state attorney general will decide if the state will continue to appeal. They have 90 days to make a decision, but all indications are that yesterday’s ruling will be appealed.

The Supreme Court won’t decide until October if it will hear a same-sex marriage case next year.

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