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SALT LAKE CITY — Utah asked the U.S. Supreme Court on Tuesday to weigh in on its law banning same-sex marriage that two lower courts have struck down, becoming the first of several cases likely to reach the justices in the coming months.
The Utah Attorney General's Office filed the petition with the high court, saying Kitchen v. Herbert is the ideal vehicle to decide whether the Constitution compels states to adopt a single marriage policy that allows people to "marry the person of their choice," as the 10th Circuit Court of Appeals affirmed in June.
The state argues that ruling deprives Utah voters of their right to define marriage as they overwhelmingly did in passing Amendment 3 a decade ago.
Utah asks the Supreme Court to answer a single question: "Whether the 14th Amendment prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman."
The petition says the issue has percolated long enough, with dozens of cases challenging state marriage laws and erratic use of stays creating legal chaos. Only the Supreme Court can lift the "vast cloud covering this entire area of the law," the state argued.
"It comes down to this: Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage," the state wrote.
Attorney General Sean Reyes said he has a responsibility to defend the state Constitution and its amendments as Utahns have enacted them.
“We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month and a half before its Sept. 23 due date," Reyes said.
"Utah 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.”
We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month and a half before its Sept. 23 due date.
–Attorney General Sean Reyes
Peggy Tomsic, an attorney for the three gay and lesbian couples who sued Utah over its marriage law, said in a statement that she respects the state's right to appeal to the high court. But she "vehemently" disagrees with the notion that states can deny "one of the most foundational rights" to millions of same-sex couples across the country.
Tomsic and National Center for Lesbian Rights legal director Shannon Minter said they would review the petition and file a response.
The petition doesn't necessarily mean the high court will hear Utah's case. The justices could have at least six appellate decisions to consider if they take up gay marriage again in the court's next term, beginning Oct. 6.
The court upended part of the federal Defense of Marriage Act in Windsor v. U.S last summer. Utah's is the first same-sex marriage case to be appealed to the Supreme Court since that decision.
The 10th Circuit in Denver overturned same-sex marriage bans in Utah and Oklahoma in June and July, respectively, while the 4th Circuit did the same in Virginia last week. The 6th Circuit in Cincinnati will hear arguments Wednesday. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8.
Marc Solomon, national campaign director of Freedom to Marry, said Utah's filing paves the way for the Supreme Court to bring a national resolution on marriage.
"Every day, hundreds of thousands of same-sex couples and their children are suffering the tangible harms of not being free to marry. The sting of discrimination and the crazy quilt of marriage laws are not just wrong but unconstitutional. The momentum is clear, the hardships of denial are real, and the country is ready for the high court to act," Solomon said in a statement.
The state's petition says the difference in the two predominant and competing views of marriage is not that one side promotes equality, justice and tolerance, while the other endorses inequality, injustice and intolerance.
"Rather, it is a difference in understanding about what the marriage institution is — or ought to be. People can disagree. But the question for this court is not which view is better; it is whether the Constitution compels states to adopt either definition," according to the state.
A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union
–Judge Carlos F. Lucero
The 10th Circuit found in a split decision in the Utah case that marriage is a fundamental right under the 14th Amendment, and the court ruled that access to marriage cannot be denied to gay and lesbian couples. It was the first federal appeals court to rule on the issue.
"A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union," Judge Carlos F. Lucero wrote for the two-judge majority. Judge Jerome A. Holmes joined him.
The three-judge panel stayed its ruling in anticipation of the state's appeal to the Supreme Court.
In his dissent, Judge Paul Kelly wrote that the Constitution is silent on the regulation of marriage and that power is reserved to the states, albeit consistent with federal constitutional guarantees.
In March 2013, Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's law against same-sex marriage in federal court. Archer and Call married in Iowa, and claim Utah law bars them from being treated the same as heterosexual couples because it does not recognize their marriage.
U.S. District Judge Robert J. Shelby struck down Amendment 3 last December, ruling that it violates the due process and equal protection guarantees in the 14th Amendment.
Utah appealed Shelby's decision to the 10th Circuit and obtained a stay from the Supreme Court, but not before about 1,300 same-sex couples married in the state.
The state argues in the Supreme Court petition that marriage is designed to honor children's right to know and be raised by a mother and father.
"But rewriting the Constitution to impose the 10th Circuit’s marriage definition on every single state has consequences. It communicates that the marriage institution is more about adults than children. It teaches that mothers and fathers are interchangeable and therefore expendable. And it instills an incentive that citizens seeking social change should use the courts, rather than the democratic process, to achieve it," according to the state.
Nineteen states and the District of Columbia now allow same-sex marriage, while judges in 14 other states have issued rulings in favor gay and lesbian couples having the right to marry. Many of those rulings were stayed as the cases move through appellate courts.
