Utah AG to Appeal 10th Circuit Ruling Striking Down Utah Same Sex Marriage Ban

As expected, the Utah Attorney General’s Office has indicated that it will appeal the recent 10th Circuit Ruling against Utah's gay marriage ban directly to the United States Supreme Court, by passing a request for a rehearing en banc by the full 10th Circuit.  Here in Virginia, of course, the big question is when will the 4th Circuit issue its ruling in the appeal of Bostic v.Rainey.  The 4th Circuit ruling will have special meaning for me and the husband who were legally married in Washington, DC, but our marriage is a nullity for state law purposes in Virginia.   SCOTUS.bog looks at the developments out of Utah.  Here are highlights:

Utah state officials will go to the Supreme Court in the “coming weeks” in a bid to revive the state’s ban on same-sex marriage, they announced Wednesday.  In a statement by Missy W. Larsen, the Utah attorney general’s chief communications officer, the state said it had opted to pass up a request for the U.S. Court of Appeals for the Tenth Circuit to reconsider en banc a three-judge panel’s ruling in June nullifying the ban.

This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages.  The Tenth Circuit was the first federal appeals court to issue such a decision (see this post).


Here is the full statement issued in the Utah case: “To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United States Supreme Court in the coming weeks.  Attorney General [Sean] Reyes has a sworn duty to defend the laws of our state.  Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

Between the time that a federal judge struck down the Utah ban and the day the Supreme Court put that ruling on hold, some 1,300 same-sex couples were married in Utah.  The validity of those marriages is now under review by the Tenth Circuit in a separate case.

Another federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, is expected to rule shortly on the constitutionality of Virginia’s ban.  That case has been handled in the Fourth Circuit by the legal team of David Boies and Theodore Olson, two high-profile lawyers who had led the court battle against California’s “Proposition 8.”

The Tenth Circuit may also rule shortly on another same-sex marriage case, involving Oklahoma’s prohibition on such marriages.  That case was heard by the same three-judge panel as the Utah case.

Part of me hopes that whatever case the U.S Supreme Court hears (it could also consolidate several appeals), that the parallel wit Loving v. Virginia comes through in the final ruling.  In my view, it is crucial that the opponents of same sex marriage be placed in the same category as those who opposed interracial marriage.  Bigotry is bigotry, and Virginia's anti-gay bigots need to be forever labeled for what they are.