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(Scott Sommerdorf | The Salt Lake Tribune) Laurie Wood, left, and Kody Partridge, right react after being told that they are officially married by the Rev. Curtis L. Price in the lobby of the Salt Lake County offices, Friday December 20, 2013.
Experts: Supreme Court may not take Utah’s same-sex marriage appeal
Same-sex marriage » State’s bid for U.S. Supreme Court clarity is no certainty.
First Published Jul 13 2014 01:01 am • Last Updated Jul 16 2014 04:58 pm

For Utah, it’s Supreme Court or bust.

After losing its appeal and becoming the first state in which a federal appeals court found marriage to be a fundamental right of all people — gay, straight or otherwise — Utah is done biding its time.

At a glance

Re-hiring lawyers for Utah

Before the same sex marriage case progresses the state will re-contract outside counsel Gene C. Schaerr, John Bursch and Monte Neil Stewart — whose services have already cost the state $300,000, and are expected to run a similar bill in Utah’s push to the Supreme Court.

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The state wants resolution and finality. And it wants it now.

This week, Utah bypassed another appeal to the full 10th Circuit.

The state will instead appeal directly to the U.S. Supreme Court "in coming weeks," the attorney general’s office said.

The Kitchen v. Herbert lawsuit, which toppled Utah’s same-sex marriage ban late last year, is the first state same sex marriage lawsuit to go through the appeals processes and is first in line to reach the Supreme Court.

But, experts warn, the path to the highest court in the country is anything but simple.

The U.S. Supreme Court, which is on its summer hiatus until October, has complete discretion over whether it will hear the case.

After Utah files its petition, the Supreme Court has options:

• The nine justices may choose to wait until a majority of the country’s appellate courts have weighed in on the issue.


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• They may take the case on its own or combine it with cases from other states and jurisdictions.

• Or they may reject the case — effectively allowing the 10th Circuit Court of Appeals’ ruling to stand.

University of Utah law professor Cliff Rosky called same sex marriage "an issue of great social importance, of great national importance," and said that might be a reason the Supreme Court refuses to hear the case.

"So, one might think the court would want to take it on. ... But if you have a Supreme Court ruling where nine justices are dictating the law in all 50 states, that’s not necessarily an ideal outcome," said Rosky, who sits on the board of Equality Utah.

Conflicting rulings among federal appeals courts could prompt the Supreme Court to hear Kitchen v. Herbert.

In 2006 the Eighth Circuit Court of Appeals — which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — overturned a lower court’s ruling and upheld a ban on same-sex marriage.

That was seven years before the Supreme Court struck down the federal Defense of Marriage Act and, by virtue of its ruling, extended federal protections to married same-sex couples.

The national and political landscape, experts said, has changed since then.

Although the high court could decide to remain quiet on the issue of state gay marriage bans, experts said, the momentum with which this issue has swept the country and the conflict in the circuits will demand action.

" If you wait for unanimous rulings in all circuits, theoretically, plaintiffs could win this circuit by circuit without the Supreme Court ever getting involved," Rosky said. "It may be the conservatives who don’t want to let the liberals off the hook. All you need is four votes for the case to be heard, and so, you might have conservative judges saying, ‘This is about the legitimacy of the court and the court’s role in that country. We believe the Constitution does not speak to gay and does not speak to marriage, and certainly doesn’t speak to gay marriage. If you want to abuse the constitution in this manner than we absolutely want to know why.’ "

But by the time the nine justices reconvene in the fall, they may have more than one case to choose from.

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