Utah's gay marriage case likely to be picked first by Supreme Court, expert says

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SALT LAKE CITY — A few key factors make it more likely that Utah's gay marriage case could be selected first to be heard by the U.S. Supreme Court, Utah legal experts say.

The nation's top court started considering cases in a closed-door conference Monday for its upcoming term, including appeals of gay marriage rulings in Oklahoma, Indiana, Virginia, Wisconsin and Utah.

Although many observers say it isn't likely, the justices could decide to not accept any of the cases and let appellate court decisions remain in force. That would make same-sex marriage legal in those states and others in those appellate jurisdictions.

A few key factors make it more likely that Utah's gay marriage case could be selected first to be heard by the U.S. Supreme Court, Utah legal experts said. The Supreme Court is deciding this week which cases to take for its next term that begins a week from Monday.

The justices may take Utah's case because it came to them first, said Salt Lake appellate lawyer Troy Booher, but there’s a chance they may wait because there are other cases making their way to the Supreme Court too.

Utah ready for either decision, state leader say
by Dennis Romboy

SALT LAKE CITY — Gov. Gary Herbert and Attorney General Sean Reyes have both said Utah would comply with the law if the Supreme Court allows the 10th Circuit decision to take effect.

"That's what it is to be a society that follows the rule of law. That's why we want final answers to things," Utah Federal Solicitor Parker Douglas said.

Douglas said he doesn't know if every state agency has a contingency plan, but he said he believes they're prepared for either outcome.

Herbert's spokesman Marty Carpenter reiterated the governor's position Monday.

"We should be ready to follow the law whatever the law happens to be," he said.

Carpenter said the governor's office has kept state agencies up to date on the court proceedings and given them some instructions to avoid the confusion that ensued after Shelby's ruling last December.

Email: dromboy@ksl.com

“If the justices can’t decide which case is the best vehicle, then they could decide the easiest way is to pick the one that was first, and that would be Utah's,” Booher said.

Lawyers representing states are hurrying to get their cases in to the Supreme Court, he added.

“It’s a host of cases reaching the Supreme Court at the same time,” he said. “You have lawyers in each case feverishly jockeying to be the one that’s picked to make the argument that goes down in history.”

The court also weeds through those cases, looking for jurisdiction questions, and they like clean cases, Booher said.

“One of the arguments that the Utah people are making is that they have a very clean case that is postured the way they normally are: one side arguing one thing and the other arguing another,” he said. “It’s a normal way for a case to be presented before the Supreme Court.”

In contrast, Virgina has a much more complicated presentation. The court could delay and wait for other states’ cases to come up, Booher said, but doesn’t think it will and said it’s unlikely the court will deny to hear the gay marriage issue.

The court decides Monday which cases to consider in its next term which starts Oct. 6, and but the rulings won't come until the spring.

Contributing: Richard Piatt

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