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Utah attorney general says he must defend his state’s gay marriage ban. Some of his counterparts disagree

Corbin Aoyagi, a supporters of gay marriage, waves his flag during a rally at the Utah State Capitol in January. (AP Photo/Rick Bowmer)

Update, July 10, 1:15 p.m.: The post was updated to reflect the fact that Virginia’s attorney general is not only no longer defending the state’s same-sex marriage ban, but is additionally also fighting it in court.

Utah’s attorney general on Wednesday said he planned to ask the Supreme Court to weigh in on the constitutionality of the state’s same-sex marriage ban.

Attorney General Sean Reyes’s (R) office said in a statement that it plans to file a Petition for Writ of Certiorari, a formal request that the court pursue review a lower court’s ruling that the state’s ban is unconstitutional. The Supreme Court usually only does so on cases that have national significance or where federal circuit courts have issued conflicting opinions.

“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,” his office said in the statement. “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.”

SCOTUSblog, the well-respected Supreme Court-focused news and analysis site, offered its prediction of what will likely happen next:

Reyes’s office said it was his “sworn duty” to defend the state’s ban no matter what, but several of his peers in other states have come to different conclusions.

In March, for example, Kentucky Attorney General Jack Conway (D) announced his office would no longer defend the state’s ban, arguing that a judge’s analysis in a recent court ruling convinced him that the state’s same-sex marriage ban would likely not survive in court.

“We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win,” he said. “There are those who believe it’s my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process, and I have heard from many of them. However, I came to the inescapable conclusion that, if I did so, I would be defending discrimination. That I will not do.”

The very same day that Conway made that statement, Gov. Steve Beshear (D) said he would hire outside counsel to defend the state’s ban.

Conway was far from alone. In February, Nevada Attorney General Catherine Cortez Masto (D) similarly said “After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable.” In January, Virginia Attorney General Mark Herring (D) made virtually the same argument. Not only not is Herring not defending the state ban, but he is actively fighting to have it struck down in court.

The attorney generals in California and Pennsylvania similarly said they could not defend their state bans last year. Governors have also abandoned the fight, as Pennsylvania Gov. Tom Corbett (R) did in May.

Of course, many states and their attorney generals remain in Reyes’s camp, continuing to defend their state bans, despite a string of nearly two dozen court rulings against them since the Supreme Court required federal recognition of such unions last summer.

Niraj Chokshi is a general assignment reporter for The Washington Post.

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