By BRADY McCOMBS
SALT LAKE CITY — Utah is going straight to the nation’s highest court to challenge a federal appeals court’s finding that gay couples have a constitutional right to marry, the state attorney general’s office announced Wednesday.
The state opted to appeal the decision to the U.S. Supreme Court rather than request a review from the entire 10th U.S. Circuit Court of Appeals in Denver. That option is now off the table, no matter what the high court decides.
Utah Attorney General Sean Reyes’ office said in a statement the appeal will be filed in the coming weeks, to get “clarity and resolution” from the highest court. “Attorney General Reyes has a sworn duty to defend the laws of our state,” the statement said.
The Supreme Court is under no obligation to hear the appeal of the June 25 ruling by a three-judge 10th Circuit panel, said William Eskridge, a Yale University law professor. There also is no deadline to make a decision, he said.
The panel’s June 25 ruling found states cannot deprive people of the fundamental right to marry simply because they choose partners of the same sex.
The 2-1 decision marked the first time a federal appeals court weighed in on the matter. It became law in the six states covered by the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
However, 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 court may wait and take up the matter after one or more of the five other appeals courts with pending gay marriage cases has ruled.
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.
Eskridge doesn’t expect a quick decision from the high court.
“Why make a decision on the Utah case until they see what the other circuits are going to do?” Eskridge said.
The ruling by the 10th Circuit panel upheld a lower court’s decision that overturned Utah’s gay marriage ban, which voters approved in 2004. More than 1,000 same-sex couples in Utah wed after the ban was struck down and before the Supreme Court issued a stay.
The panel considered a similar challenge to Oklahoma’s gay marriage ban, but it has not ruled in that case.
Utah Gov. Gary Herbert hoped the state would appeal to the Supreme Court, his office said recently. The governor said the state already anticipated and budgeted for a need to defend the law before the highest court.
Utah has spent about $300,000 paying three outside attorneys to defend its same-sex marriage ban. It would cost another $300,000 to have the trio defend the case at the Supreme Court, the state estimates.
Plaintiff Moudi Sbeity called the decision to take the case to the high court “wonderful news.” He and his partner, Derek Kitchen, are one of three gay and lesbian couples who sued Utah over its 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.”