Yesterday, the Attorney General’s office announced that it would no longer attempt to appeal the June 25th 10th Circuit Court decision upholding Judge Robert Shelby’s decision finding Utah’s Amendment 3 unconstitutional within the 10th Circuit, instead taking the appeal to the Supreme Court of the United States.
“Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise,” Missy Larsen, spokesperson for the AG’s office told the media, when she announced that the state would not seek the “en banc” ruling necessary to overturn the 10th Circuit’s decision within that court.
En banc rulings are rare within the U.S. justice system, but not unheard of. Under this type of ruling, all judges sitting in the court would re-hear the case that overturned Amendment 3. The body would then decide if the ruling from the three judges who originally heard the case was, in fact, correct.
By not seeking an en banc ruling, the state will take the case to the highest court in the land in an attempt to defend the 2004 amendment, which received overwhelming support from Utah voters in the November election.
Though not unexpected, the fate of Amendment 3 is now in the hands of nine justices with three possible outcomes:
Decline to Hear the Case
The Supreme Court has the option not to hear the Amendment 3 case, thereby upholding the decision in the 10th Circuit court and striking down Utah’s ban on same-sex marriage. Since the 10th rules over several states, any same-sex marriage bans would also be overturned in Colorado, Kansas, Oklahoma, and Wyoming. New Mexico, which is also under the 10th Circuit, does not have a same-sex marriage ban and would therefore be unaffected. Other Circuit Court states hearing similar cases would not be affected by the Supreme Court’s decision.
Supreme Court Waits
Several states and their respective Circuit Courts, however, do have similar cases working their way through the other court systems. The Supreme Court could decide to wait until these cases have reached their conclusion before taking up the overall issue of same-sex marriage in the United States.
If the Court exercises this option, Utah’s appeal would be lumped together with any other appeals and the Court would then make a ruling on some or all of the parts of an overall appeal. Such a decision would mean that Utah’s case may be tied
Supreme Court Hears the Case
There is, of course, the possibility that the Supreme Court hears the case outright.
Because Utah’s Amendment 3 is clear in its stance on same-sex marriage, it is possible that the Court would be willing to take the issue head-on.
If the Court finds Amendment 3 unconstitutional, there is next to nothing a state could do to ban same-sex marriage short of supporting a federal Constitutional amendment explicitly banning the practice.
There are also a number of other conclusions the Supreme Court could come to where the Court finds some, but not all, of Amendment 3 unconstitutional. This, however, will be dependent on how the case is presented to the Court and how well each side argues their case.
If the Court does decide to hear the case immediately, arguments could begin as early as fall of this year with a decision roughly this time next year.
Eric Ethington contributed to this article.