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Utah plaintiffs ask U.S. Supreme Court to hear gay marriage case

Published August 28, 2014 10:44 pm

Same-sex marriage appeal • Three gay couples hope the U.S. Supreme Court will support them.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

For the three gay couples who on Thursday asked the U.S. Supreme Court to take up Utah's same-sex marriage appeal, it's no longer just about Utah.

Having won at the district court, and then the federal appeals court, the three plaintiff couples in Utah's historic Kitchen v. Herbert lawsuit are ready to go to the nation's high court and put it all on the line.

Win here, and the couples would legalize same-sex marriage throughout the country; lose and, Utah has said, the state would revert back to its "status quo" of marriage being strictly allowed between one man and one woman.

"Today, our nation's same-sex couples and their children live in a country where they may be denied legal recognition as a family or may find their marriages invalidated simply by virtue of crossing a state line," according to the brief filed with the U.S. Supreme Court in support of Utah's request that the court hear its case.

"This court should grant the petition and hold that denying same-sex couples the fundamental freedom to marry and to have their marriages recognized violates our nation's cherished and essential constitutional guarantees."

It's not a question for the plaintiffs — Derek Kitchen and Moudi Sbeity; Kody Partridge and Laurie Wood; and Kate Call and Karen Archer.

If they're going to win, their attorneys said, it's going to be all or nothing.

"These couples and many others like them in Utah want nothing more, and nothing less, than to be able to marry the person they love and to have their marriages respected on an equal basis with other married couples in this country," said Peggy Tomsic, who, along with her firm Magleby and Greenwood, represents the three Utah couples. "This is one country, and we have only one Constitution. We hope the Supreme Court will review this case and affirm the 10th Circuit's ruling that same-sex couples have the same fundamental freedom to marry as others and that the law must treat their families equally."

On Thursday, the couples filed a brief asking the nation's high court to weigh in on the question of whether all citizens — gay, straight and otherwise — have a fundamental right to marry.

Utah has contended that they don't, and that states, and by extension, its citizens, have the right to define marriage as they wish. In Utah's case, that means as a union between a man and a woman.

In its petition to the high court, filed on Aug. 5, Utah outlined why this state's case would be the ideal one for the high court to take: because the court, which granted two stay requests from Utah, is familiar with the issues in this state; that a "majority" of Utah's politicians are "united in defending Utah's marriage laws"; and that "there is no need to let the issue percolate even more."

The state also articulated the crux of its case: that marriage is an institution created to protect the welfare of children; and in affirming that the "freedom of choice to marry" supersedes state-imposed limitations, the country could be drawn down a slippery slope toward polygamy.

"The harm in waiting is significant, regardless of which side prevails," Utah wrote. "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."

Thursday's filing by the plaintiffs is unusual in that they've already won in lower courts, but it's a route lesbian and gay couples from Virginia and Oklahoma have also taken in recent weeks.

Same-sex marriage bans in Virginia and Oklahoma also have been found unconstitutional by federal appeals courts. Those states also have asked the U.S. Supreme Court to take on their cases.

In each case, the plaintiffs have echoed this desire to have the high court decide whether same-sex couples have a "fundamental right to marriage," as has been found by the 10th and 4th Circuit Courts of Appeals.

The U.S. Supreme Court is on summer break through October. At that point, the justices will reconvene and decide which — if any — same-sex marriage cases the court will take.

"As more and more courts affirm that same-sex couples have a constitutional right to marry, it becomes harder to countenance the profound inequality in states that continue to deny that right to our nation's gay and lesbian citizens," the plaintiffs' brief stated. "Same-sex couples in Utah cannot experience full equality until this court makes clear that the Constitution's protection of their families does not evaporate when they cross state lines. Prolonging this uncertainty for same-sex couples and their families harms them and disserves our nation."

The plaintiffs' argued that the nation's nine justices should choose Utah's case above all others because it is representative of so many others in the country; the lawsuit addresses the right to marry in Utah, as well as marriage recognition; the state has mounted a vigorous defense; all parties were found to have standing — or suffered harms as a result of the law they have challenged; and it was the first case in the nation in which a federal court judge overturned a state ban on same-sex marriage for violating the 14th Amendment.

For Utah, an appeal to the Supreme Court is its last chance to revive its ban on same-sex marriage.

U.S. District Judge Robert J. Shelby struck down Utah's gay marriage ban last year in a historic decision that jump-started a slew of similar rulings.

Since the U.S. Supreme Court overturned key parts of the federal Defense of Marriage Act last year, more than 79 cases asserting the right to marry for same-sex couples have been brought in 32 states. Of those, 38 state and federal judges have ruled to toss bans on same-sex unions.

Three lawsuits have made it to the Supreme Court, but experts expect more will be forthcoming.

mlang@sltrib.com

Twitter: @Marissa_Jae