They look for opportunities to reconcile circuit splits. If you never have a circuit split, do you really think the (Supreme Court is) going to take it? "I don't think so. —Rep. Brian King, D-Salt Lake City

SALT LAKE CITY — A state lawmaker doubts the U.S. Supreme Court will take on a same-sex marriage case unless there is disagreement among lower federal courts.

Rep. Brian King, D-Salt Lake City, noted that none of the 14 courts that have ruled on the issue have taken Utah's position that marriage is only between a man and a woman, "so we're 0 and 14."

"They look for opportunities to reconcile circuit splits," he said. "If you never have a circuit split, do you really think the (Supreme Court is) going to take it? "I don't think so."

King, a lawyer, directed the question to Utah Solicitor General Bridget Romano, who briefed the Legislature's Commission on Federalism about gay marriages cases Tuesday.

Romano acknowledged that a judicial split is usually the vehicle driving a case to the Supreme Court, but the marriage question is one it would want to weigh in on regardless.

"I think they would potentially take it because it’s a question of historic magnitude," she said. "They would want to put their point on the exclamation point."

To date, only federal district courts have overturned state bans on same-sex marriage. Appeals of those decisions are pending in several federal appellate courts across the country, including Utah's case in the Denver-based 10th Circuit Court of Appeals. A ruling could come this month.

Rep. Ken Ivory, R-West Jordan, said he was struggling with how one federal judge could strike down a marriage law passed by the Legislature and approved by voters as Utahns did with Amendment 3.

"If a judge can do that, what's left?" he asked.

Romano suggested it would be satisfying for the committee — five of the seven of whom are Republicans — if the high court lets the issue percolate while each state decides the question for itself through the democratic process.

"We've done that repeatedly in Utah," Ivory said.

Romano, though, said it's inevitable that the courts, not the people, will answer the marriage question.

"When the train has left the station from multiple terminals all wanting to get to the same point, I think the court will have to render the decision," she said.

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Ivory said regulating marriage is a power that has belonged to the states for 237 years. King countered that equal protection guarantees in the Constitution take precedence over the will of the people.

Romano said she hopes the 10th Circuit issues a decision no later than the end of July because the Supreme Court's next term starts in October. She said the court would have to accept a case by late November or December to allow time for briefs and oral arguments before it stops hearing cases in March.

"The question will get to the Supreme Court," Romano said. "The question is when."


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