This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
On Sept. 29, the U.S. Supreme Court announced, it will take its first look at five states' same-sex marriage cases and discuss which — if any — the nine justices would take.
The high court, which will convene for a private conference before its session begins in October, distributed the seven gay marriage petitions it has received to the justices, according updated docket information Wednesday.
Utah's case — the landmark Kitchen v. Herbert lawsuit that became the first to see a federal judge apply the Supreme Court's ruling on the federal Defense Of Marriage Act (DOMA) and overturn a state ban on same-sex marriage — will be reviewed along with three from Virginia and one apiece from Indiana, Oklahoma and Wisconsin.
It will be the court's first opportunity to decide whether or not it will hear one, or several, of these cases.
Experts have said it would be surprising if the court decided to ignore altogether the percolating issue of state same-sex marriage bans, though the justices may also elect to push the issue back and postpone its decision.
That's what the court did in 2012 when deciding whether to address cases challenging DOMA. They held all requests — called petitions for writs of certiorari — until December, at which point the justices voted to take the Proposition 8 case and Edie Windsor's challenge out of New York.
With several state challenges still working their way through the federal court system, that could happen again.
Utah filed its final paperwork Wednesday in an effort to persuade the high court that its case is the best one to settle the question of whether a state has a right to institute bans on gay and lesbian unions.
"The question presented — whether the Fourteenth Amendment prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman — is of immense national importance and warrants this court's immediate review," wrote Gene C. Schaerr, the state's appointed counsel in this case. "Utah's case presents the best vehicle for definitively resolving all important same-sex marriage issues."
Utah presented the court with five core arguments as to why its case is the best one to settle the question of same-sex marriage once and for all: the state is ardently defending its voter-approved marriage ban, the appropriate officials have been sued and there are no issues of standing, Utah's ban is "representative" of other states' laws, the case address both recognition of out-of-state marriages as well as new unions and "both lower courts concluded correctly that Utah's laws were not based on animus," or prejudice.
Utah also pointed to several "friend of the court" briefs filed on its behalf last week by 10 other states, conservative organizations and faiths that also argue that the Kitchen case should be the one the Supreme Court takes.
The state's filing reiterates the claim of the Church of Jesus Christ of Latter-day Saints and the Catholic Church that allowing same-sex marriage would threaten religious liberty.
It also further explores Utah's argument that if same-sex marriage bans were found unconstitutional, the country runs the risk of falling down a slippery slope that could lead to child brides and polygamy.
"[Plaintiffs] echo the 10th Circuit's mistake that this case is about 'the freedom of choice to marry,' " Schaerr wrote. "If a person's choice is the only marriage limit, then virtually every line that people have drawn around marriage must fall. That 'right' would override not only a limit based on sexual complementariness, but limitations based on age, consanguinity, and number of participants. ... There is no fundamental right to marry someone of the same sex."
This "sexual complementariness" of opposite-sex couples furthers Utah's interest of preserving "traditional" families among couples with the "natural capacity to create new life" and protecting children.
But gay rights advocates have taken issue with this characterization, arguing that laws that ban same-sex unions hurt gay and lesbian couples, their children and their families every single day.
"Today, our nation's same-sex couples and their children live in a country where they may be denied legal recognition as a family or may find their marriages invalidated simply by virtue of crossing a state line," Salt Lake City-based attorney Peggy Tomsic wrote in the plaintiffs' filing to the Supreme Court. "Denying same-sex couples the fundamental freedom to marry and to have their marriages recognized violates our nation's cherished and essential constitutional guarantees."
The plaintiffs seeking to overturn Utah's — and by extension, all states' — ban on same-sex marriage have urged the court to take up the case. Generally, an unusual move for plaintiffs who have won at the circuit level, but the plaintiffs in every state have asked the Supreme Court to intervene on this issue.
"Utah's same-sex couples and their children are suffering severe harm from the state's continued denial of equal dignity and legal protection for their families," said Shanon Minter, an attorney with the National Center for Lesbian Rights, who is co-counsel for the plaintiffs in the Utah case.
"It is time to end the legal bans that keep committed couples from standing up and making the unique pledges of marriage to each other — pledges that would allow their families protection and security everywhere in this country," added nationally renowned gay rights attorney Mary Bonauto, the most recent addition to the Kitchen legal team.
Friend of the court, or amicus, briefs were also filed in support of the plaintiffs — including one from 15 states where same-sex marriage is legal and another from 30 businesses who ask that the Supreme Court intervene on behalf of their employees, whose benefits are checkered throughout the country and who live in states where companies are legally unable to offer marital benefits to same-sex spouses.
The court will consider all arguments before making its final determination on which case, if any, it may take.
Just four of the nine justices need to vote "yes" for a case to receive certiorari and be heard.
Several other cases — from the 5th, 6th, 7th, 9th and 11th circuits — are making their way through the appellate process and may land before the Supreme Court before a decision is reached.
The court may decide to combine cases or take several rather than just one.
Twitter: @marissa_jae