Utah’s Petition for Writ of Certiorari in Kitchens v. Herbert – Same Sex Marriage

Zack Peterson

September 2014

In legal circles as in life, be careful what you wish for.  The news is out that Utah has filed a Petition for a Writ of Certiorari in the same sex marriage case.  Utah is requesting the United States Supreme Court to review the 10th Circuit’s ruling upholding the Utah district court’s decision that the Amendment 3 unconstitutional.

As you may know, Utah’s Amendment 3, Article I, Section 29 on [Marriage.] reads (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage 070-416 or given the same or substantially equivalent legal effect.

In a surprising move to some, the plaintiffs in Utah’s same sex marriage case indicated that they intend to join in Utah’s request to have the 10th Circuit’s ruling reviewed. The Salt Lake Tribune reporter accurately noted: “victors rarely ask for a rematch.”  The pundits have started weighing in on the chances of the United States Supreme Court accepting the case for discretionary review.

In a nutshell, the plaintiffs’ decision to join rather than oppose Utah’s petition should give the State and those who oppose same-sex marriage pause for thought.  The reason that the plaintiffs have decided to join in the State’s request is that Amendment 3 and the arguments that Utah is advancing in its support represent the best case – in the plaintiffs’ view – to have the United States Supreme Court uphold the unconstitutionality of same sex marriage laws.  As the articles discuss, other states and other federal circuits have similar challenges in the pipeline.  For proponents of same sex marriage, Amendment 3 is one of the, if not the, least defensible laws percolating up through the federal circuits.  The plaintiffs want to argue Amendment 3 is unconstitutional rather than some other state’s statute because it is an easier argument to make. 

Appellate court decisions are an effective means to achieve favorable laws in many areas of the law and in industry and commerce.  Savvy parties and legal advocates, however, carefully choose which cases to appeal and which to accept in defeat.  Perhaps Utah will be successful, and as the pundits note, it is likely that Utah’s petition will be joined with another state or states similar to petition, meaning that the United States will be considering other same 070-460 sex marriage bans in conjunction with Amendment 3.  Nonetheless, the plaintiffs’ decision to join Utah’s petition is a telling sign as to how Amendment 3 compares to other states’ laws.

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