The Tenth Circuit ruled today that Utah’s ban on same-sex marriage is unconstitutional because it violates a person’s fundamental right to marriage. The court issued a stay on its ruling pending the outcome of review by the Supreme Court, if the state decides to appeal.
So what are the state’s options?
- The state could seek en banc review, which is review by the entire Tenth Circuit court (including only active judges, not judges on “senior” status unless they were on the original 3-judge panel). There are eleven active judges on the Tenth Circuit today. If the state requests such review, the court would set an oral argument date (likely during its September term), the parties would appear to argue in front of the entire court, and then the court would issue another opinion, likely split, again. If argument is heard in September, I wouldn’t expect a ruling by the en banc court before December. Today’s ruling would have no precedential weight on the court’s decision.
- Or, the state could appeal directly to the Supreme Court – a petition for certiorari. The state has 90 days for such a request, but the Supreme Court is in recess at the end of this week regardless of when in the next 90 days the state appeals. The Supreme Court has the option of hearing the case or denying review. There is much conjecture about whether the Court would hear the case or not. If the Court chooses not to review the case, the Tenth Circuit ruling becomes immediate law in the State of Utah, and is highly precedential for every other Court of Appeals currently reviewing similar issues. If the Court does decide to review the case, then the process of briefing begins again, and a date for oral argument is set, likely sometime early next year.
- Or, the state could choose not to appeal the Tenth Circuit ruling, in which case the opinion would stand as law in the State of Utah and same-sex marriages would be legal. Incidentally, the related case currently before the Tenth Circuit on recognition of the approximately-1200 same-sex marriages performed in late December of last year would likely be considered moot by the Tenth Circuit, since the marriages would be legal under today’s ruling anyway.