by Mike Andrew - SGN Staff Writer

Utah Attorney General Sean Reyes filed an appeal on August 5, asking the U.S. Supreme Court to hear Kitchen v. Herbert, a suit challenging Utah's ban on same-sex marriages.

In June, the Tenth Circuit Court of Appeals upheld a lower federal court decision in that case striking down Utah's marriage law.

Meanwhile, Supreme Court Justice Ruth Bader Ginsberg told The Associated Press that she believes the high court will take up the issues of state bans on same-sex marriage.

In December last year, the Supreme Court struck down DOMA, the prohibition on federal recognition of Gay and Lesbian marriages, but their decision was narrowly written to avoid taking a position on state laws against same-sex marriage.

Since then, 17 federal district courts, and three appeals courts have ruled in favor of marriage equality, but Utah officials insist they will defend their state's laws all the way to the Supreme Court if necessary.

'My responsibility is to defend the State Constitution and its amendments as Utah citizens have enacted them,' Utah Attorney General Sean Reyes said in a statement. 'We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month-and-a-half before its September 23rd due date.'

Utah's 212-page appeal alleges that the Tenth Circuit decision deprives 'Utah citizens of the 'fundamental right' to act through a lawful electoral process ... and ignores that the Constitution says nothing about how states must define marriage...

'It comes down to this: thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage,' the Utah appeal claims.

Attorneys for the plaintiffs in the Utah case said that the state's right to define marriage cannot trump same-sex couples' rights to marry.

'We respect the state's right to seek review of its own law in the highest court in the land, but we also respectfully, and vehemently, disagree with the notion that states can deny one of the most foundational rights to the millions of same-sex couples living across this great land,' attorney Peggy Tomsic said in a statement.

'We will carefully review the State's petition to determine the response that will best advance our goal of winning for all Utahans the freedom to marry the person they love, and to have their marriages treated the same as other couples' marriages,' said plaintiff co-council Shannon Minter, legal director of the National Center for Lesbian Rights.

Ginsberg: SCOTUS will hear a marriage case
Freedom to Marry hoped that Utah's appeal would lead to a quick Supreme Court decision that established marriage equality as the law of the land.

'Today's filing in the Utah case paves the way for the U.S. Supreme Court to take up a marriage case later this year and bring national resolution on marriage once and for all,' the group said in a statement.

'Every day, hundreds of thousands of same-sex couples and their children are suffering the tangible harms of not being free to marry. The sting of discrimination and the crazy quilt of marriage laws are not just wrong but unconstitutional. The momentum is clear, the hardships of denial are real, and the country is ready for the High Court to act.'

The Supreme Court is not obligated to hear any appeal, but in an interview unrelated to the Utah case, Justice Ruth Bader Ginsberg told Mark Sherman of The Associated Press that she believes the Supreme Court will indeed hear a marriage case soon.

'I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,' Ginsburg said. 'If a case is properly before the court, they will take it.'

Ginsberg was referring to Loving v. Virginia, the 1967 decision in which the Supreme Court invalidated laws against interracial marriages. The high court avoided taking a case on the issue until most states had already repealed their laws on the subject. Loving has also been cited by several federal judges as a precedent for overturning unconstitutional state restrictions on the freedom to marry a spouse of someone's own choice.

The Ginsberg interview took place before Reyes filed Utah's appeal to the Supreme Court, and the Justice did not discuss any pending cases, so she clearly is not saying that the high court will or should accept the Utah case.

The key phrase in Ginsberg's statement is 'properly before the court.'

In the Prop 8 case it heard last December, the court allowed a Ninth Circuit ruling striking down Prop 8 to stand because, the justices said, the groups pursuing the appeal had no standing to defend the law after California state officials declined to do so. Similarly, on August 5, Justice Alito declined to intervene on behalf of a Pennsylvania county clerk and stay a lower court ruling striking that state's marriage ban, after state officials decided not to file an appeal.

Utah's appeal, on the other hand, is likely to be 'properly before the court' because the state's governor and attorney general want to keep the ban on same-sex marriage.

Does SCOTUS need to take the case?
One question for both the Supreme Court and marriage equality advocates: Does the high court even need to take up the issue?

Same-sex marriage is now legal in all of the states under the jurisdictions of the First, Second, and Third Circuit Courts of Appeal, either because of court orders, through legislation, or because of ballot measures.

The Fourth, Ninth, and Tenth Circuit Courts have all issued pro-equality rulings.

On August 6, the Sixth Circuit Court will hear marriage cases from every state in its jurisdiction.

That means that out of 11 appeals courts, only the Fifth, Seventh, Eighth, and Eleventh will not have ruled on marriage by the end of the week, and there are active lawsuits in each of those jurisdictions. Therefore it is entirely possible that a nationwide legal consensus will develop without getting the Supreme Court involved.

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