Virginia, Utah attorneys general take gay marriage fight to the Supreme Court


Corbin Aoyagi, a supporter of gay marriage, waves a rainbow flag during a rally at the Utah State Capitol on Jan. 28. (Rick Bowmer/Associated Press)

The attorneys general of Virginia and Utah are taking the fight over their state same-sex marriage bans to the Supreme Court.

Utah Attorney General Sean Reyes (R) filed a petition with the court on Tuesday afternoon, asking it to review a lower court’s ruling striking down the state’s ban on same-sex marriage. Hours later, Virginia Attorney General Mark Herring (D) said he would soon do the same. Reyes has repeatedly said it his duty to defend the state’s ban, while Herring has argued that his state’s ban is discriminatory.

“My responsibility is to defend the State Constitution and its amendments as Utah citizens have enacted them,” Reyes said in a statement. “We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month-and-a-half before its September 23rd due date.”

Herring echoed Reyes’s sentiment in his own statement, calling for a quick resolution: “I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word,” he said. “I want that decision to come as soon as possible and I want the voices of Virginians to be heard. This case has moved forward at an incredibly swift pace, and I look forward to a final resolution that affirms the fundamental right of all Virginians to marry.”

The two statements show that many in the same-sex marriage debate are eager for a quick resolution, with proponents of same-sex marriage encouraged by a string of 35 consecutive legal victories since the Supreme Court granted federal recognition to same-sex married couples last summer. Twenty of those decisions have come from federal courts, twelve from state courts and three from federal appellate courts, according to a count maintained by Freedom to Marry, which advocates for same-sex marriage.

At issue, Reyes notes in the Utah filing, is whether the 14th Amendment “prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.” He announced his intent to file with the court last month, after the 10th Circuit Court of Appeals struck down the state’s ban in late June. “Our internal team of attorneys have diverse personal beliefs about the issues in question, but unite in their dedication to seek final clarity and uphold Utah law,” he said in announcing his intent to file.

But not all attorneys general have reached the same conclusion. Herring in January said he would not defend Virginia’s ban. Kentucky Attorney General Jack Conway (D) said in March that continuing to defend that state’s ban constituted a waste of official resources.

If the Supreme Court takes up Utah’s petition for it to weigh in, the court could issue a decision as soon as next summer. SCOTUSblog, the respected Supreme Court news and analysis Web site, offered its prediction in early July:

Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
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