Utah Attorney General to Appeal Gay Marriage Ruling Directly to U.S. Supreme Court

Utah Attorney General Sean Reyes won't ask for an en banc (all the justices rather than a three-judge panel) Tenth Circuit appeal of the Kitchen v. Herbert ruling striking down Utah's gay marriage ban. He plans to appeal directly to the U.S. Supreme Court.

ReyesThe AG's statement, via Fox 13 Salt Lake City:

“To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certioari to the United States Supreme Court in the coming weeks. Attorney General Reyes has a sworn duty to defend the laws of our state.  Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

Writes Lyle Denniston at SCOTUSblog:

This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages.  The Tenth Circuit was the first federal appeals court to issue such a decision…

…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 Supreme Court has seen the Utah same-sex marriage issue before.  In January, the Justices issued an order temporarily blocking a federal trial judge’s ruling against the state ban, pending review of the case by the Tenth Circuit.  That review then went forward, with the three-judge panel splitting two to one on June 25 in finding the ban unconstitutional.

The panel, however, has put its decision on hold, and said it would remain suspended until the state had a chance to take the case to the Supreme Court.  Wednesday was the final deadline for Utah to ask the Tenth Circuit to rehear the case en banc, and the state has now chosen not to do that.


  1. Gerry says

    I don’t understand the statement: “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.” What conflict? No other federal appeals court has ruled post Windsor about it except for the 10th circuit.

  2. says

    @Gerry: SCOTUSblog was referring to a 2006 8th Circuit decision (I wondered the same thing), so pre-Windsor and of questionable importance now.

    Going right to SCOTUS makes sense since an en banc 10th Circuit hearing would merely push things down the road. The only question now is if and when the Supremes will take it up.

  3. says

    My bet is on them passing it up. Too many lower court Federal judges have ruled in favor of gay marriage. To my knowledge not one has ruled against it. To keep themselves out of the fray they should, and probably will, say “no thanks” leaving Reyes with egg on his face and paving the way for the rest of the states to accept gay marriage. Who is with me?

  4. johnny says

    Not sure, Mike. It might be something they simply want to rule on this year and just get the deed done, once and for all. It sure would save a lot of states taxpayer money and get this out of the headlines and over with. They know it’s looming and perhaps their tired of living it the Marriage Equality shadow.

  5. woodroad34 says

    I think the Mormon bigots read like Sarah Palin: “like…ummmm…everything”. How could they have missed any of the recent, what?, 18 rulings against the bigots? Is learning or comprehension that difficult for these people? And if so, why are they in leadership positions? Where’s the so-called “leadership”?

  6. JJ says

    Even if there is a conflict, that doesn’t explain why they would want to expedite the case. I suspect their true reason is that they want SCOTUS to hear the case before too many other states lose their appeals, too. It’s much easier to argue that one or two appellate courts erred than six or seven did.

  7. ben~andy says

    SCOTUS takes a case = 4 Justices vote to take it.

    SCOTUS doesn’t take a case = less than 4 Justices voted to take it.

    They can’t avoid taking it if there is “conflict” in the Circuit Courts of Appeal because there has to be “equality of the law” for there to be “equality before the law”.

    So, they could still kick the can down the road and the Preservatives might if they don’t know how Kennedy will vote. If the Liberals think that Kennedy would vote with them, they could vote to take it to decide the matter once and for all.

    In come ways, losing 3 pretty conservative states, UT, WY & KS would gin up the Republican base. CO, decided today but by a Colorado court is more Purple than Red or Blue right now.

    And the Supremes don’t have to say “yes” or “no” immediately [and won’t as it isn’t until September that they start granting or denying cert]. They can NOT take it for the Fall term and still take it for the Spring, meaning no ruling until a year from now.

    However, from the Wikipedia article on Certiorari: “The Supreme Court sometimes grants a writ of certiorari to resolve a “circuit split”, when the federal appeals courts in two (or more) federal judicial circuits have ruled differently in similar situations. These are often called “percolating issues.”

    Stating that the Supremes “sometimes” do something means that they don’t always do it. Perhaps they can let it percolate for even longer.

  8. Bob K says


    1–NOTHING of any consequence that Utah State officials (lackeys of mormonity) do will conflict with the church.
    2–They have a bad problem, because the morhole church is based on marriage and procreation.
    3–I would almost prefer that they hate Gays, but they fear Gays, because their own Gay kids (big families mean more queers) will want to marry, as their siblings are required to do.
    4–They still consider it an affliction, but they now get that some Gays won’t get over it.
    5- When the 1/3 of Utah Gays who are not morholes can marry, mormon parents will start to feel bad that most of their children can marry, but Sam or Marie can’t. This will cause conflict in a church that is already losing members.


  9. jason MacBride says

    The Supreme Court would like nothing better than for all the circuits to rule in favor of marriage equality so they could say “nothing to decide.”

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