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Could U.S. Supreme Court decide not to decide on gay marriage?

Utah hopes for a 10th Circuit ruling soon, with a possible appeal decided by the justices in 2015.

First Published Jun 03 2014 04:05 pm • Last Updated Jun 05 2014 06:09 pm

There’s no guarantee that the U.S. Supreme Court will have the final word on the same-sex marriage question, and one Utah lawmaker who’s an attorney believes it’s unlikely.

Pointing to the unbroken string of 14 district court rulings overturning state same-sex marriage bans in recent months, beginning with Utah’s last December, Rep. Brian King, D-Salt Lake City, says there appears to be little reason for the nation’s high court to take up the issue.

At a glance

The state of the states

Nineteen states and the District of Columbia now have legal same-sex marriage, with Illinois becoming the latest. Of the remaining 31 states, 30 have their constitutional or statutory bans under challenge in the courts.

Source: Utah attorney general’s office

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"Do you really think that the Supreme Court would take this case — until and unless there is some court somewhere that rules in favor of the position that the state of Utah has taken — because I don’t think so," King said Tuesday in an exchange with Bridget Romano, solicitor general for the Utah attorney general’s office.

"They look for opportunities to reconcile circuit [court] splits."

During an appearance before a legislative panel, Romano acknowledged the Supreme Court usually doesn’t take cases in which there’s no disagreement at lower-court levels.

"Generally they want to see if there is a lot of friction among the courts about how the question should be answered.

"But the Supreme Court [justices] could say because this is such a large question and it has import to everybody in every state ... that they would take the case to provide that answer so that we don’t have ‘catch as catch can’ from one state to the next.

"I think they could potentially take it because it’s a decision of such historic magnitude for all the citizens of the United States ... they would want to put their point on the exclamation point as to what that answer is."

In updating lawmakers on Utah’s appeal, Romano said state attorneys hope to have a ruling from the Denver-based 10th U.S. Circuit Court of Appeals this month, but no later than July. "Timing matters with respect to getting issues before the Supreme Court," she added, saying that if the justices accepted Utah’s case by year’s end, they could hold arguments by March and issue a decision by next June.

She acknowledged that whether the Utah case will be the one picked by the high court is anyone’s guess.


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‘I’m sure there are bookmakers and oddsmakers that are looking at every single case and deciding which state, which case and what time is the Supreme Court going to weigh in," Romano said, "but I would be surprised if anybody says the Supreme Court is not going to."

Taking up the issue is at the discretion of the justices, she said, and they might choose to wait until they believe the time is right and the issue ripe. Romano pointed to comments by Justice Ruth Bader Ginsberg saying the turmoil over abortion rights for so long may be a result of the Supreme Court making its Roe v. Wade decision prematurely.

In the case of same-sex marriage, Romano said, "they may want something completely different answered at a different time."



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