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Utah to appeal gay marriage ruling to high court

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Utah has decided to go straight to the Supreme Court of the United States to argue against gay marriage, meaning the nation's highest court will have at least one same-sex marriage case on its plate when it returns in October.

The office of the Utah attorney general announced Wednesday that it would bypass a full appeals court and take the gay marriage case to the Supreme Court instead.

If the U.S. Supreme Court decides to take the case, it will be the first time the top court considers gay marriage since justices last year struck down part of the federal Defense of Marriage Act. The high court is under no obligation to the take the case, and it could wait for rulings from one or more of the five other appellate courts with gay marriage cases pending, legal scholars say.

Utah's appeal is of a June 25 ruling from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, which found states cannot deprive people of the fundamental right to marry simply because they choose partners of the same sex. The panel immediately put the ruling on hold pending an appeal.

The Utah case is certain to pique the Supreme Court's interest, but the justices usually look for cases that involve split rulings from federal appeals courts, said Douglas NeJaime, a University of California-Irvine law professor.

The 4th U.S. Circuit Court of Appeals heard arguments about Virginia's ban in early May, and a ruling is expected soon. Arguments are scheduled for August and September in two different courts for cases out of Michigan, Ohio, Kentucky, Tennessee, Nevada and Idaho.

"My best guess it that the court will hang onto this for a while and see what happens," NeJaime said. "There are so many cases now, it will have a pick."

William Eskridge, a Yale University law professor, also doesn't expect a quick decision from the high court. The Supreme Court is under no deadline to make a decision and knows other appellate decisions are coming, he said.

Utah Attorney General Sean Reyes' office said in a statement the appeal will be filed in the coming weeks, to get "clarity and resolution" on the matter. The decision to go directly to the Supreme Court means a review from the entire 10th Circuit Court is off the table, no matter what the high court decides.

Gov. Gary Herbert has said the state already budgeted for a need to defend the law before the Supreme Court. It is expected to cost another $300,000 to have three outside attorneys handle the case – the same amount it cost to take the case to the federal appeals court.

The Supreme Court's landmark ruling last summer allowed married same-sex couples to receive the same federal benefits as other married people, but did not specifically address whether gay marriage is a constitutional right.

Since then, lower courts have repeatedly cited the decision when striking down gay marriage bans. The latest such ruling was Wednesday, when a state judge struck down Colorado's gay marriage ban. That ruling is on hold pending an appeal.

In the Utah case, the 10th Circuit upheld a lower court's decision that overturned a 2004 voter-approved gay marriage ban. More than 1,000 same-sex couples wed in Utah after the ban was struck down and before the Supreme Court issued a stay.

The same thing happened in Indiana, where several hundred same-sex couples married during a two-day window in June. On Wednesday, Indiana state officials said they won't recognize those marriages – the same decision Utah made.

The conservative Sutherland Institute of Utah applauded the state for appealing to the highest court, saying in a statement that it gives states the chance to "defend marriage as society's way to encourage a married mother and father for every child."

Plaintiff Moudi Sbeity called the decision to take the case to the Supreme Court "wonderful news." He and his partner, Derek Kitchen, are one of three couples who sued over Utah's gay marriage ban.

"We are one step closer toward having our families recognized in our home state," Sbeity said. "It's definitely a case our Supreme Court needs to hear. The faster we can move on this, the better for all of us."

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

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  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

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