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Utah appeals to U.S. Supreme Court in gay marriage case

Published: Tuesday, Aug. 5 2014 11:30 a.m. MDT

Utah on Tuesday became the first state to ask the U.S. Supreme Court to weigh in on its law banning same-sex marriage that two lower courts have struck down.

Alex Brandon, Associated Press

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SALT LAKE CITY — Utah asked the U.S. Supreme Court on Tuesday to weigh in on its law banning same-sex marriage that two lower courts have struck down, becoming the first of several cases likely to reach the justices in the coming months.

The Utah Attorney General's Office filed the petition with the high court, saying Kitchen v. Herbert is the ideal vehicle to decide whether the Constitution compels states to adopt a single marriage policy that allows people to "marry the person of their choice," as the 10th Circuit Court of Appeals affirmed in June.

The state argues that ruling deprives Utah voters of their right to define marriage as they overwhelmingly did in passing Amendment 3 a decade ago.

Utah asks the Supreme Court to answer a single question: "Whether the 14th Amendment prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman."

The petition says the issue has percolated long enough, with dozens of cases challenging state marriage laws and erratic use of stays creating legal chaos. Only the Supreme Court can lift the "vast cloud covering this entire area of the law," the state argued.

"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 state wrote.

Attorney General Sean Reyes said he has a responsibility to defend the state Constitution and its amendments as Utahns have enacted them.

“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 Sept. 23 due date," Reyes said.

"Utah welcomes a speedy grant of the petition and a Supreme Court merits decision, as all Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.”

Peggy Tomsic, an attorney for the three gay and lesbian couples who sued Utah over its marriage law, said in a statement that she respects the state's right to appeal to the high court. But she "vehemently" disagrees with the notion that states can deny "one of the most foundational rights" to millions of same-sex couples across the country.

Tomsic and National Center for Lesbian Rights legal director Shannon Minter said they would review the petition and file a response.

The petition doesn't necessarily mean the high court will hear Utah's case. The justices could have at least six appellate decisions to consider if they take up gay marriage again in the court's next term, beginning Oct. 6.

The court upended part of the federal Defense of Marriage Act in Windsor v. U.S last summer. Utah's is the first same-sex marriage case to be appealed to the Supreme Court since that decision.

The 10th Circuit in Denver overturned same-sex marriage bans in Utah and Oklahoma in June and July, respectively, while the 4th Circuit did the same in Virginia last week. The 6th Circuit in Cincinnati will hear arguments Wednesday. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8.

Marc Solomon, national campaign director of Freedom to Marry, said Utah's filing paves the way for the Supreme Court to bring a national resolution on marriage.

"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," Solomon said in a statement.

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