The announcement came on the deadline day when Attorney General Sean Reyes needed to decide whether to appeal the decision by a three-judge panel of the U.S. Tenth Circuit Court of Appeals against the marriage ban to the full court. Now that Utah has opted out of this intermediate step, the only option for appeal is the high court.
Missy Larsen, a spokesperson for the Utah attorney general, verified the state’s plan for appeal in a statement to the Washington Blade.
“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 Certiorari to the United States Supreme Court in the coming weeks,” Larsen said. “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.”
Once the petition for a writ of certiorari is filed, the Supreme Court will decide whether or not to take up the case. It may be the first such petition filed before the Supreme Court in a marriage case following the ruling against the Defense of Marriage Act last year. LGBT advocates are expecting the court to take up at least one of the marriage cases in anticipation of a court ruling next year on nationwide marriage equality.
Utah Gov. Gary Herbert and Reyes have been defending the state’s ban on same-sex marriage, known as Amendment 3, against the litigation, which is known as Kitchen v. Herbert. A district court in December ruled the law was unconstitutional, allowing 1,300 couples to wed in the state before the U.S. Supreme Court placed a stay pending appeal on the weddings.
In a 2-1 decision, the three judge panel on the Tenth Circuit affirmed the lower court ruling, citing judicial precedent from the U.S. Supreme Court’s decision against DOMA.