Utah, Virginia want Supreme Court to settle same-sex marriage issue

Two states, coming from different sides of the gay marriage debate, said Tuesday that they were appealing the issue to the U.S. Supreme Court, seeking a constitutional ruling that will finally settle the question of whether same-sex couples have a right to marry.

Utah Atty. Gen. Sean Reyes said he had a duty to defend the decision of his state’s voters, but also said he welcomed the “clear finality” of a high court ruling.

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FOR THE RECORD

An earlier version of this post misspelled the first name of Marc Solomon, campaign director for Freedom to Marry, as Mark.

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“Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the people ratified the United States Constitution,” Utah’s lawyers said in their appeal. “This court should grant the petition and answer, once and for all, the important question presented.”

They noted that two-thirds of Utah’s voters approved a ballot measure in 2004 that said marriage “consists only of a legal union between a man and a woman.” But in December, a federal judge struck down that measure as violating the equal rights of same-sex couples, and the U.S. appeals court in Denver upheld the decision in June.

Hours later, Virginia’s attorney general, Mark Herring, said he would file an appeal Friday urging the high court to strike down his state’s law forbidding gay marriage. Herring, a Democrat who was elected last year, refused to defend the law in court, saying it was unconstitutional. A federal judge and the U.S. Court of Appeals in Richmond agreed.

“I look forward to a final resolution that affirms the fundamental rights of all Virginians to marry,” Herring said.

The justices will decide in the fall whether to take up the appeals. If they agree to hear one or both cases, they will issue a decision by next summer.

Utah stands the better chance of winning a hearing because the state’s attorney general is defending the law. Last year, the high court refused to rule on a similar case from California because the state’s lawyers did not appeal.

Utah’s lawyers recognize they are swimming against a strong tide. In the last year, 35 courts, both federal and state, have ruled against marriage bans for same-sex couples.

But the lawyers for Utah say the high court’s ruling last year striking down the federal Defense of Marriage Act strengthens their case. The opinion by Justice Anthony M. Kennedy said states had the authority to define and regulate marriage. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, not to the laws of the United States,” Kennedy wrote in United States vs. Windsor.

Citing that passage, Utah’s lawyers say that “the Constitution does not dictate a particular vision of marriage that all states must follow.”

In ruling against the state, lower court judges cited other parts of Kennedy’s opinion that said gays and lesbians had the right to equal treatment under the law. Since the right to marry is fundamental, the state may not exclude same-sex couples, they ruled.

Advocates on both sides say they hope the Utah or Virginia case will decide the issue for the nation. Marc Solomon, campaign director of Freedom to Marry, said Utah’s filing “paves the way for the U.S. Supreme Court to take up the marriage case later this year and bring national resolution on marriage once and for all.”

Utah’s Reyes agreed on the need for a final ruling. “All Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage,” the attorney general said in a statement.

On Twitter: @DavidGSavage