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As Utah waits for same-sex ruling, marriage battle spreads
Courts » Support appears to be growing for same-sex marriage.

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The other four were filed in federal court.

"It’s very checkered," Tobias said.

At a glance

Where is same-sex marriage legal?











New Hampshire

New Jersey

New Mexico

New York

Rhode Island



Washington, D.C.

States with cases pending in U.S. appeals courts

4th Circuit » Virginia

5th Circuit » Texas

6th Circuit » Kentucky, Michigan, Ohio, Tennessee

9th Circuit » Nevada

10th Circuit » Oklahoma, Utah

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So what’s the advantage to fighting a case like these before a federal judge rather than a state one?

The answers can vary state-by-state, but generally, Tobais said, the consensus is federal judges are better equipped to rule on these questions of federal constitutionality.

Changing landscape » On Friday, Arkansas became the most recent state to see its ban on such unions overturned by a judge — state Circuit Court Judge Christopher Piazza declared that a state law and constitutional amendment that defined marriage as a legal union between a man and a woman are unconstitutional. At least one Arkansas county began issuing marriage licenses to same-sex couples on Saturday as Attorney General Dustin McDaniel said he would appeal the ruling and ask that it be suspended during that process.

"The issue at hand is the fundamental right to marry being denied to an unpopular minority," Piazza wrote in his decision. "Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest."

The judge took a different approach than many federal judges have, and found that the state’s law was predicated on animus, or malevolent prejudice, against a particular group.

Piazza also liberally compared same-sex marriage bans to 20th-century laws that outlawed interracial marriages, which were ultimately struck down in the landmark 1967 case Loving v. Virginia.

It’s a comparison experts believe will be brought to the forefront on Tuesday, when Virginia appeals a lower court’s decision to topple their ban on same-sex marriages to the 4th Circuit Court of Appeals.

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Virginia’s appeal, which trails Utah’s and Oklahoma’s by barely a month, is also likely to be appealed to the U.S. Supreme Court — regardless of the outcome.

What’s next » Although Utah, Virginia and Oklahoma are just a few of the several same-sex marriage cases likely headed to the U.S. Supreme Court, the nation’s high court does not have to hear any of them.

Justices can decide which case — if any — they want to hear.

This has led to widespread speculation over which circuit may be selected.

Some experts argue the court may want to hear a case out of the 6th Circuit because it would be representative — each of its states has a same-sex marriage lawsuit pending.

Others argue it may select Utah’s case out of the 10th Circuit, given that Shelby’s ruling was the first and, arguably, most influential of the district-level decisions.

The court may also choose to lump all the cases together and issue a broad ruling.

No matter what they do, Tobias said, it’s unlikely the court will choose not to rule on the question given the amount of momentum such cases have gained and how widely they’ve spread.

"Judges read the newspaper and live in society and interact with other citizens," he said. "They have a sense of what’s going on and how much this matters to people. They have to."

The Associated Press contributed to this story.

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