Utah Attorney General Sean Reyes announced Wednesday that he will appeal the 10th Circuit Court’s decision last month ruling the state’s ban on same sex marriage was unconstitutional to the U.S. Supreme Court. Both opponents and advocates of gay marriage say they hope the case does reach the nation’s highest court and think it could pave the way for the most crucial ruling on the issue so far.
In a statement sent to Business Insider, Missy Larsen the chief communications officer in the Utah attorney general’s office, explained Reyes decided to appeal directly to the Supreme Court rather than seeking a review by the 10th Circuit Court in order to “obtain clarity and resolution from the highest court.”
“Attorney General Reyes has a sworn duty to defend the laws of our state,” Larsen said. “Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”
Chris Plante, a regional director for the anti-gay marriage group National Organisation for Marriage, told Business Insider he hopes the Supreme Court decides to take up the case.
“Our take is that this would be a good one for the court to take up because it does deal only with the constitutionality of state marriage amendments, not a side issue such as out of state marriages,” Plante said. “This is a clean and clear case on the constitutionality of state marriage amendments and the right of people to vote to define marriage for themselves.”
Plante characterised the case as one where the Supreme Court would have to definitively rule on whether or not individual states would be allowed to decide whether same-sex marriage is legal within their borders.
“On its face, that’s their decision, whether or not the states have the right to define marriage for themselves,” he explained.
Paul Weiss Rifkind Wharton & Garrison LLP attorney Roberta Kaplan successfully argued in front of the Supreme Court to strike down the Defence Of Marriage Act, which allowed states to prohibit same-sex marriage. Kaplan disputed Plante’s characterizaton of the Utah case.
“The case is not about whether states can decide the issue. That’s a mischaracterization of the claim. States have the right in any area to test laws,” said Kaplan. “The question occurring in this case, which is something the courts have decided since Marbury vs. Madison, is whether the laws that were passed satisfy the federal Constitution.”
Kaplan offered her own summary of the key issues in the Utah case.
“The question is whether the law at issue here, which allows straight people to get married but not gay people, is that law constitutional?” Kaplan said.
While they disagreed on how to characterise the case, both Kaplan and Plante said they hoped it would come before the Supreme Court. They also both said it would present the opportunity for a landmark ruling.
However, both Plante and Kaplan pointed out that the Supreme Court could decide not to hear the case. They also noted the Court could make a decision that did not have a dramatic effect on the federal legal standing of same-sex marriage.
Kaplan pointed to the Supreme Court’s ruling on California’s same sex marriage ban last year. Though Kaplan said that case presented the “same issues” as the Utah case, she noted the court ultimately sided with pro-gay marriage advocates in California because the case was brought by supporters of the gay marriage ban rather than the state. (The court ruled that supporters of the ban didn’t have standing to bring the case, and it dismissed the challenge to the ruling overturning the gay-marriage ban. That ruling effectively kept gay marriage legal in California.)
In that instance, even though the Supreme Court took up what could have been a landmark gay marriage case, by punting the case on a technicality, the justices avoided setting precedent on the issue.
Since the Utah case is being brought by the state attorney general, it would not seem to allow for a similar decision. However, Plante said he still believes the Court could decide to hear the case and come up with a ruling that avoids either making gay marriage federally legal or leaving it up to states to decide.
“I would not be the least bit surprised to see them find a third option,” he said.
Still, though she is not certain the court will take up the Utah case or use it as an opportunity to make a definitive decision on same-sex marriage, Kaplan is confident the Supreme Court will make a landmark ruling on the issue. She noted there are several cases currently making their way through the court system that “present virtually identical issues.”
“Ultimately, the Supreme Court will have to decide this issue,” said Kaplan. “One of these cases will eventually get to the Supreme Court.”
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