It's not a typical decision for the justices because they have numerous petitions presenting essentially the same issue, but they're postured slightly differently. —Troy Booher, Salt Lake appellate lawyer
SALT LAKE CITY — The U.S. Supreme Court will start considering Monday the cases it will take in its upcoming session, including the challenge to Utah's ban on same-sex marriage.
The state's case, Kitchen v. Herbert, is among gay marriage cases in Virginia, Oklahoma, Wisconsin and Indiana the justices will look at before deciding which, if any, to hear in their term starting Oct. 6.
"Ours is the lowest number, so we're at the top of the pile," said Utah Federal Solicitor Parker Douglas.
Typically, the court grants, denies or defers the petitions it receives. The multiple same-sex marriage cases, however, create a unique situation.
"In Kitchen, it's a little bit more complicated. It's not a typical decision for the justices because they have numerous petitions presenting essentially the same issue, but they're postured slightly differently," said Salt Lake appellate lawyer Troy Booher.
With the marriage cases, the court could do a number of things after its Monday conference:
It could delay a decision until another one of its bi-weekly conferences to gather more information or wait for petitions in other cases around the country.
It could deny all the petitions, allowing appellate court decisions to stand. That would make same-sex marriage legal in Utah.
It could accept one or more of the petitions and keep the stays in other cases intact until issuing a ruling.
It could consolidate several cases.
A decision could come as early as Tuesday or in the next week or weeks.
"Unlike most petitions, one of these almost certainly will be granted. It's possible that they'll say no but very unlikely," Booher said. "The real question is whether they decide at this conference or defer deciding because they know more cases are in the pipeline."
Booher said a likely scenario would be for the court to grant all the same-sex marriage petitions and deem one the lead case. Only the parties in that case would file written arguments and participate in oral arguments.
Lawyers in each of the cases are vying for the court's attention, including taking shots at perceived flaws in other cases.
"The main question at this point is which case or cases present the best vehicle(s) for the efficient and complete resolution of these issues that the nation needs," reads the Indiana petition. "All but this one, however, have vehicle shortcomings that should not be taken lightly."
A brief in the Oklahoma case calls it a "good vehicle" to resolve the marriage question. The Virginia case, according to a brief, is an "excellent vehicle." Utah and Wisconsin use the term "ideal vehicle" to describe their cases.
Interestingly, attorneys for the same-sex couples who won in the lower courts in each state have asked the Supreme Court to take their case.
The Utah case — the first one to reach the high court since the Windsor decision in June 2013 — has several things that could make it attractive to the justices.
Kitchen v. Herbert addresses both the right to marry and recognition of gay and lesbian marriages performed in other states. Unlike in some cases, the governor and attorney general continue to defend the state's marriage law. Lower courts concluded the voter-approved law wasn't based on animus.
"It's just a very straightforward, sound case that would allow the court to resolve this issue," said Shannon Minter, legal director of the National Center for Lesbian Rights, which serves as counsel in the Utah case.
But, he said, any of the cases would be good, and the overriding goal is to get the Supreme Court to take one of them.
Douglas, Utah's federal solicitor, said the court is already familiar with the state's case, having issued two stays to lower court rulings that allowed same-sex marriage. It also doesn't have the procedural problems of the Oklahoma and Virginia cases, he said. The governor and attorney general in Virginia are no longer defending the state's law.
He also noted that rulings in other courts around the country relied in whole or in part on U.S. District Judge Robert J. Shelby's opinion in the Utah case.
Douglas allowed that ego plays a part among lawyers in the several cases. And, of course, Utah wants the Supreme Court to accept its case after all the work that has gone into it. But, he said, "the most important thing is people in our country get clear guidelines on how to live their lives."
In addition to the what, the who factors into the justices' decision.
Plaintiffs and states defending their marriage laws are bringing in attorneys with name recognition before the court. And Booher said that matters.
"All things being equal, they're more likely to grant cert in a case where they know they're going to get very get high quality arguments in the briefs, and especially at oral argument because the attorneys handling it are known quantities," he said.
Peggy Tomsic, of the Salt Lake law firm Magleby & Greenwood, is the lead attorney for the plaintiffs in the Utah case on a team that includes former acting U.S. solicitor general Neal K. Katyal and Mary Bonauto, who argued the case that established gay marriage in Massachusetts in 2003.
Utah Attorney General Sean Reyes hired accomplished appellate lawyer Gene Schaerr and former Michigan solicitor general John J. Bursch to head the state's defense. Both have appeared before the Supreme Court, and Bursch would argue the state's case if the court takes it.
The state's case has moved rapidly since Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's voter-approved Amendment 3 defining marriage as between a man and a woman in a federal lawsuit in March 2013. Archer and Call married in Iowa and claim the law bars them from being treated the same as heterosexual couples because it does not recognize their marriage.
In December 2013, Shelby ruled that the law violates equal protection guarantees in the 14th Amendment.
The state appealed Shelby's decision to the Denver-based 10th Circuit Court of Appeals and obtained a stay from the Supreme Court, but not before about 1,300 same-sex couples married in the state. The 10th Circuit upheld Shelby's ruling in June.
Last month, the state asked the nation's highest court to hear the case.
Attorneys for plaintiffs
Peggy Tomsic — partner in the Salt Lake City law firm Magleby & Greenwood who has been the lead attorney for the plaintiffs since the case was filed in March 2013
Neal K. Katyal — former acting U.S. solicitor general who has argued 21 cases before the Supreme Court and is counsel for five cases in the upcoming term
Mary Bunauto — Civil Rights Project director at Gay & Lesbian Advocates & Defenders who argued the case that established same-sex marriage in Massachusetts
Attorneys for Utah
John J. Bursch — former Michigan solicitor general who argued 6 percent of all the cases before the Supreme Court from March 2011 through 2013
Gene Schaerr — former partner at Winston & Strawn in Washington, D.C., who has handled more than 100 cases in federal and state appellate court, including the Supreme Court
Parker Douglas — Utah federal solicitor who worked on more than 20 Supreme Court cases at Latham & Watkins in Washington, D.C.
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