August 5, 2014 at 2:24 pm EST | by Chris Johnson
First post-DOMA marriage case reaches Supreme Court
Supreme Court, gay news, Washington Blade

The first-post DOMA marriage lawsuit has reached the U.S. Supreme Court. (Washington Blade file photo by Michael Key)

The first lawsuit challenging a state ban on same-sex marriage in the aftermath of the ruling against the Defense of Marriage Act has reached the Supreme Court.

On Tuesday, Utah Attorney General Sean Reyes filed a petition for certiorari with the Supreme Court asking justices to overturn lower court decisions striking down the state’s ban on gay nuptials.

In a statement, Reyes said he’s appealing a decision by the U.S. Tenth Circuit Court of Appeals affirming the law is unconstitutional because his duty is “to defend the State Constitution and its amendments as Utah citizens have enacted them.”

“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,” Reyes said.

Although the petition wasn’t due until Sept. 23, Reyes said he filed the petition more than a month ahead of time to expedite a resolution to the case and end uncertainty he says the litigation has caused as quickly as possible.

In December, U.S. District Judge Robert Shelby struck down the Utah’s ban on same-sex marriage, known as Amendment 3, on the basis that it violates equal protection rights under the Fourteenth Amendment of the U.S. Constitution. Upon appeal, a three-judge panel on the Tenth Circuit affirmed the ban is unconstitutional.

The case, Kitchen v. Herbert, was filed by the law firm of Magleby & Greenwood on behalf three same-sex couples who either wish to marry in Utah or to have out-of-state marriage recognized in the state. The National Center for Lesbian Rights later joined as co-counsel in the lawsuit.

It’s not the first time a marriage equality has been appealed to the Supreme Court. In 1972, the U.S. Supreme Court rejected the appeal of Baker v. Nelson “for want of a substantial federal question.” That dismissal is cited as a reason in Utah’s petition for why the Supreme Court should overturn rulings against the state’s ban on same-sex marriage.

But the most historic case before the Supreme Court challenging a ban on same-sex marriage was Hollingsworth v. Perry, which was filed against California’s Proposition 8. In a decision las year, the court side-stepped the issue of the law’s constitutionality, saying the proponents of the ban didn’t have standing to defend the measure. That left in place ruling by a federal district court in California striking down the anti-gay marriage amendment.

The Supreme Court is under no obligation to take up another marriage case, although most observers expected justices will take up the issue in time to make a nationwide ruling by the end of Summer 2015.

But the Supreme Court is likely to have more cases to choose from other than the Utah case. Attorneys for clerks in cases challenging same-sex marriage bans in Virginia and Oklahoma have already pledged to take up the litigation with the Supreme Court.

Marc Solomon, national campaign director of Freedom to Marry, expressed excitement about the appeal as a means to decide the issue of marriage equality at a national level.

“Today’s filing in the Utah case paves the way for the U.S. Supreme Court to take up a marriage case later this year and bring national resolution on marriage once and for all,” Solomon said. “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.”

Read the petition seeking review of the Utah marriage equality case here.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • El Dorado

    Likely the outcome of the eventual case the SCOTUS decides to take on the issue will be narrow. You can count on Scalia, Alito, Thomas and Roberts to come against marriage equality based on their dislike for it rather than rule with the concept of liberty and justice for all. I haven’t seen Roberts take a favorable vote in favor of our rights so far. Wasn’t he saying in the Prop 8 case that people should be able to define marriage? I don’t see any impartiality on his part with the issue.

    It will really hinge on Kennedy’s ruling as typically is the case with gay issues at the court. While Reyes may cite Baker V. Nelson to reject the lower court rulings, We can cite precedent about equality protection under the law with Romer v. Evans which Kennedy wrote the majority opinion for.

    A clear majority opinion in another case that states that gays have rights based on equal protection under our Federal Constitution will be helpful and hopefully finally solidify our arguments on this point when it comes to future court cases!

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