Though they have won each step of the way, the gay couples challenging Utah’s ban on same-sex marriage will join their adversaries in asking the Supreme Court to make theirs the case for deciding whether states must license gay marriages.
The development is intended to persuade the Supreme Court to take up the issue quickly, and it reflects a feeling among some gay rights groups that the justices are inclined to vote their way.
Utah already has filed a petition with the court asking it to review the decision of the U.S. Court of Appeals for the 10th Circuit, which upheld a district court’s ruling that the state’s ban was unconstitutional.
The winners in a case do not usually advocate for Supreme Court review. But Neal Katyal, a former acting solicitor general who is now part of the legal team representing the gay couples, said his clients agree the issue can only be settled by the justices.
“We plan to have it teed up” for the court to consider in late September, which would allow the issue to be decided next year if the court agrees to hear it, he said.
As a practical matter, the Supreme Court already has said that same-sex marriages may not be performed in Utah for now, and they would seem unlikely to resume until the high court acts on the constitutional question of whether marriage can be denied to same-sex couples.
Utah is not the only state that wants to bring the issue to the court. Virginia plans to file a petition with the court on Friday that will ask the court to take its case even though Attorney General Mark R. Herring (D) has said he thinks an appeals court was right to strike down the commonwealth’s ban.
Virginia’s case is unusual because Gov. Terry McAuliffe (D) and Herring thought the law was unconstitutional and joined the gay couples challenging it. A district judge and then a panel of the U.S. Court of Appeals for the 4th Circuit agreed with the challengers.
But Herring is urging the appeals court to stay its order allowing marriages, saying the decision should be made by the nation’s highest court.
Virginia’s law is being defended by private lawyers for a county clerk who issues marriage licenses.
Theodore Olson, one of the attorneys representing the gay couples who brought the challenge to Virginia’s laws, said his clients were discussing “all the possibilities, including acquiescence” to asking the Supreme Court to take the case.
Additionally, Oklahoma has appealed a loss to the Supreme Court.
The justices are under no obligation to take any of the cases and can hold the petitions for an indefinite amount of time if they want to see how other appeals courtsrule.
The most certain development to assure the court would accept the issue sooner rather than later would be a split among the appeals courts considering decisions striking the bans.
Rulings in four states went before a skeptical panel of the U.S. Court of Appeals for the 6th Circuit on Wednesday, and three other appeals courts will consider the issue in the next six weeks.
Katyal said there is a perception that states are racing to get their cases to the Supreme Court. But he said the team representing the Utah plaintiffs, which includes private lawyers in that state and the National Center for Lesbian Rights, “are not here to bump out other folks.”