Will the Supreme Court Take Utah's Gay Marriage Ban Appea?

With the 4th Circuit poised to release its ruling in the Virginia gay marriage ruling at any moment, with Wisconsin announcing that it will appeal the ruling striking down that state's ban to the 7th Circuit, the growing question is what will the U. S. Supreme Court do with the soon to be filed appeal by the state of Utah's appeal from the 10th Circuit ruling upholding the U.S. District Court ruling that declared Utah's gay marriage ban to be unconstitutional.  Based on Utah's pitiful argument before the 10th Circuit, any appeal to the Supreme Court will likely involve a regurgitation of the arguments - e.g., marriage is for procreation, it's a state rights issue, etc. - that to date have failed to impress any of the numerous U.S. District Courts and state courts that have found state marriage bans to violate the equal protection and due process guarantees of the U.S. Constitution.  Andrew Sullivan provides a good synopsis of the different "reading of the tea leaves" of what the court may do.  Here are highlights:

The court doesn’t have to take the case, of course, but Denniston explains why they might choose to:

With the case going to the Justices via such a petition, the Court will have complete discretion whether to review the Tenth Circuit ruling, or pass it up. Utah officials are almost certain to argue that the Court should take up the issue promptly based on the argument that there is now a conflict among federal appeals courts on the constitutionality of such bans.

The Eighth Circuit upheld such a ban, but that was in 2006, seven years before the Supreme Court’s Windsor decision — a ruling that many judges have said changed the legal landscape for review of those state laws. In the Windsor decision, which involved only a federal law, the Court indicated that it was not taking a position at that time on the validity of state laws forbidding same-sex marriages.

But there is no such conflict between courts regarding this particular case, so the justices might prefer to hold off:

While most observers expect the high court to take up the issue of marriage equality within the next few years, the Associated Press notes that the court has a history of declining to consider cases without divergent rulings from lower courts. In the Kitchen case, a federal trial judge and the 10th Circuit both ruled that the state’s ban on same-sex marriage is unconstitutional. If the Supreme Court declines Utah’s request to hear the case, those lower rulings will stand, definitively declaring Utah’s marriage law unconstitutional and striking down the voter-approved law.

Some legal experts, however, doubt the court will turn it down:

“I think the Court will take the case. Since [U.S. v.] Windsor, all of the lower courts that have ruled have struck down laws prohibiting same sex marriages,” said Erwin Chemerinsky, the Dean of the University of California, Irvine School of Law. “Perhaps without a split in the lower courts, the Supreme Court will wait. My prediction, though, is that the Court knows the issue needs to be resolved and will take it.” And if the Court does hear the case, all eyes will be on Justice Anthony Kennedy, not simply because he’s the traditional swing vote, but because he has written all three decisions in Supreme Court history that advanced gay rights. “I also predict that the five justices in the majority in Windsor will be the majority to declare unconstitutional laws that deny marriage equality to gays and lesbians,” Chemerinsky said.

Also yesterday, Alito denied without comment a county clerk’s plea to stop same-sex marriages in Pennsylvania. “That appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted,” Denniston adds in an update. And, in other good news, a judge struck down Colorado’s marriage equality ban yesterday, though the decision is stayed pending appeal. The speed of all this is simply staggering.

Perhaps I am biased, but I believe that the Supreme Court will taker the Utah appeal and that ultimately, state gay marriage bans will all be ruled unconstitutional for reasons similar to those expressed by the majority in United States v. Windsor.   Yes, the shrieking and lamenting of the Christofascists will be off the charts.  But at the same time, the justices can see where the mood of the country is going and, if the Court is to maintain relevance and respect - especially after the ridiculous ruling in Hobby Lobby, there really is only one way for the Court to rule: gay marriage is a constitutional right.