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Utah Seeks U.S. Supreme Review to Revive Gay-Marriage Ban

Aug. 6 (Bloomberg) -- Utah asked the U.S. Supreme Court to revive its same-sex marriage ban, becoming the first state to do so since the high court last year struck down a law that barred the federal government from recognizing gay marriage.

Since that pivotal ruling in June 2013, gay-marriage advocates have tallied more than two dozen lower-court victories without a single defeat. Utah’s prohibition was the first in that spate of cases to be found unconstitutional by a federal appeals court.

The 5-4 ruling in U.S. v. Windsor is the high court’s most definitive take on the constitutional rights of gay couples. Striking down a 1996 U.S. law that denied federal benefits to legally married same-sex spouses, the court’s majority said the measure created a “second-tier marriage” for gay couples.

While courts have consistently read last year’s ruling as undercutting any rationale for state bans, Utah argued the opposite in yesterday’s petition for review. The state said the June decision by the U.S. Court of Appeals in Denver that its ban is unconstitutional runs afoul of the conclusion in the Windsor case that defining domestic relations belongs with the states.

“There are dozens of cases that raise the question whether the Constitution dictates a single marriage definition,” according to Utah’s filing. “If Utah prevails here, the court will have necessarily concluded that Utah is ‘competent’ to define marriage” and the resolution of the case “can mark the end of marriage litigation in all respects.”

Same-sex marriage is now allowed in 19 states and the District of Columbia.

Marriage Licenses

Utah’s voter-appproved ban was first struck down by a Salt Lake City federal judge on Dec. 20. More than 1,000 couples received marriage licenses from Dec. 23 to Jan. 6.

After the Supreme Court put the ruling on hold to allow for an appeal, Utah refused to grant marital benefits to those couples, sparking even more litigation.

In yesterday’s petition, Utah cited previous Supreme Court rulings that support states’ rights to define marriage. While defending its ban in lower courts the state emphasized that voters backed the 2004 law by an almost 2-1 margin.

The state argued that its case is the “ideal vehicle” to resolve the question of whether such bans are legal because Utah’s governor, attorney general and a majority of its legislators are united in defending the law. State officials in Oklahoma and Virginia didn’t defend their bans that were found unconstitutional by federal appeals panels last month.

“My responsibility is to defend the state constitution and its amendments as Utah citizens have enacted them,” Utah Attorney General Sean Reyes, a Republican, said in an e-mailed statement.

‘Majorities Overstep’

Shannon Minter, a lawyer who represents a gay couple in the Utah case, responded to the states’ rights argument by arguing that “courts have to step in and act as a check when majorities overstep and take rights away from vulnerable minorities.”

“One of the most important roles that the courts play in our democracy is enforcing individual liberties, and the important principle of equal protection of the laws,” Minter said yesterday an interview.

Utah’s request for the Supreme Court to weigh in comes at a time when public support for gay marriage is growing, reaching a new high of 55 percent in a Gallup poll conducted May 8-11. The nationwide poll, which had a margin of error of 4 percentage points, showed 42 percent opposed.

Virginia Attorney General Mark Herring said in a statement yesterday he will petition the Supreme Court Aug. 8 to review his state’s ban. Herring, a Democrat who took office in January refused to defend the ban before it was struck down by trial and appeals court judges, said he wants the final resolution from the high court as soon as possible.

‘Final Word’

“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.

The Supreme Court could decide at its September conference to accept or reject either of the petitions from Utah and Virginia. Its next nine-month term starts in October.

Despite all the momentum in lower courts to legalize gay marriage, several high court justices from the Windsor majority have signaled they aren’t especially eager to up the issue right away.

Justices Anthony Kennedy and Sonia Sotomayor suggested during arguments last year in a separate gay-rights case from California that it was too soon for a Supreme Court ruling on gay marriage. Ruth Bader Ginsburg has hinted she has a similar view, saying the court moved too quickly in 1973 when it legalized abortion nationwide.

The Utah appeals court case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the 10th Circuit (Denver). The Virginia case is Bostic v. Schaefer, 14-1167, U.S. Court of Appeals, Fourth Circuit (Richmond).

To contact the reporter on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net Peter Blumberg, Joe Schneider

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