SALT LAKE CITY (RNS) It’s no coincidence that victors rarely ask for a rematch. When you’ve won, traditional wisdom says, walk away.

Jax Collins, left, and Heather Collins are overjoyed as they are married by Rev. Christopher Scuderi of Universal Heart Ministry on Monday (Dec. 23, 2013), at the Salt Lake City County offices. Hundreds of same-sex couples descended on county clerk offices around the state of Utah to request marriage licenses. A federal judge in Utah struck down the state's ban on same-sex marriage last Friday, saying the law violates the U.S. Constitution's guarantees of equal protection and due process. Photo by Francisco Kjolseth  |  The Salt Lake Tribune

Jax Collins, left, and Heather Collins are overjoyed as they are married by Rev. Christopher Scuderi of Universal Heart Ministry on Monday (Dec. 23, 2013), at the Salt Lake City County offices. Photo by Francisco Kjolseth | The Salt Lake Tribune

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But for the Utah couples attempting to topple a state ban on same-sex marriage once and for good, there will be no turning back until their case — or one like it — lands at the U.S. Supreme Court.

Lawyers for the three plaintiff couples announced Thursday (Aug. 7) that they will join with Gov. Gary Herbert and Attorney General Sean Reyes in calling for the Supreme Court to hear their case.

It’s an unusual move.

But Peggy Tomsic, who represents the three plaintiff couples in Utah’s historic Kitchen v. Herbert lawsuit, said she believes the move is a necessary one.

“Just as the state has articulated: This is one of the most important issues of our time and it needs to be resolved,” said Tomsic. “Unlike the state, we believe the more important reason that the Supreme Court needs to take this case now is it needs to put to bed finally this question of equality and fairness.”

Earlier this week, Utah filed an official petition with the high court, asking the nation’s nine justices to take up Utah’s same-sex-marriage case.

It’s the state’s last chance to reinstate Amendment 3, the voter approved same-sex-marriage ban that became the first to be struck down by a federal judge last year.

But the plaintiffs aren’t in such dire straits.

Because the 10th U.S. Circuit Court of Appeals ruled in June that Utah’s ban on same-sex unions violated the U.S. Constitution, that decision would stand and become law in all of the 10th Circuit states if the Supreme Court refuses to hear the Utah case.

That means gay-marriage bans in Colorado, Kansas, Oklahoma, New Mexico, Utah and Wyoming would be overturned. It would be a win for the plaintiffs.

But it’s not the win they want.

“If we let the decision by the 10th stand, sure, it resolves the issue for the plaintiffs and other people living in the circuit for now. But people move, people get relocated because of jobs, people travel all across the U.S.,” Tomsic said. “It can’t be, in terms of their security and stability, that every time a same-sex couple passes a state boundary they might be at risk.”

By telling the Supreme Court that they, too, want the justices to weigh in, Utah’s plaintiffs are sending another message to the nation: They think we can win — even at the highest level, when they have everything to lose.

(Marissa Lang writes for The Salt Lake Tribune.)



  1. The Governor and Attorney General of Utah are either the most clever marriage equality supporters in existence or its dumbest opposition ever.

    They didn’t even have arguments which could pass muster in one of the most conservative Federal judicial districts in the nation, at two levels. Losing 20+ cases across various federal districts of varying political temperaments should be a warning sign that one doesn’t really have much of a chance. There are still no coherent rational or secular arguments proffered to meet the government’s burden needed to support gay marriage bans. If it were not the case, the court decisions would be far more mixed.

    This is a guaranteed loser for the Utah state government.

    Justice Kennedy may be a bit of a conservative wonk who is a touch too pro-corporation for sanity’s sake, but he also has been the key figure in support of gay rights litigation. Romer v. Evans, Lawrence v. Texas, and Windsor v. US were all his decisions. They are the integral building blocks to all of the cases striking down gay marriage bans. Kennedy is not going to overrule himself. There is your 5th Justice right there.

    I am expecting SCOTUS to punt on the issue. I sincerely doubt Scalia and pals really want to be backed into a corner of having to discuss Equal Protection arguments here.

      • If they chose to hear it (I sincerely doubt the Conservative wing wants to) it will be 5-4 against Utah. The liberal 4 + Kennedy. Kennedy is solidly in the gay rights corner. His prior decisions are the basis for all of these lawsuits.

      • The ruling will have a much different outcome then the lgbt ppl believe. The doma case was about state law v federal, mass passed a law allowing gays to get married doma made the law invalid in a sense. The 10th amendment states that federal law cannot trump state law on issues of voting laws age of consent marriage ect. The lgbt side thinks this means the 14th amendment is in play, but Kennedy never used that he used the 10th amendment on dealing with winsor v usa. Lastly the epc of the 14th amendment does not protect sexual behavior, the right of expression is to a point until it is vulgar. If the lgbt ppl were smart they would not help utah. Myself i do not support gay marriage, but from a legal sense when it goes to the scotus kennedy will be questioned on his past ruling. Since the winsor v usa was state law v federal marriage bans are the same thing texas utah ohio ect have laws in place, so these cases are pretty much now like winsor, does a state have a right to regulate marriage or do federal laws now take over and the 10th amendment is null and void.

    • There are still no coherent rational or secular arguments proffered to meet the government’s burden needed to support gay marriage bans.

      There are no coherent, rational arguments about why a constitutional provision passed in 1868 to nullify black codes applies in the least to conventional matrimonial law. People who make that argument have not a shred of integrity.

      • Really? I take it you have never read a single SCOTUS decision from the 1920’s onward. Almost a century of interpreting Equal Protection and Due Process clause say you are full of crap.

        Equal protection was specifically written as the death knell of “State’s rights” that sparked the Civil War. States and local governments cannot be trusted to be the arbiter of civil liberties. Our most egregious forms of legal discrimination happen at that level.

        And no, there are still no rational and secular arguments for the government to institute a gay marriage ban.

        • Kennedy isnt in the gay corner honestly no one really is. Kennedy went by the 10th amendment and the 5th amendment. Since mass had a law allowing gays to marry they had to have due process under the law, because they were the same as a true married couple and doma was federal. Now if gay marriage was not allowed in mass Doma would still be the law. Get it or little too much

  2. No Frank, you may think you’ve lost something. That’s too bad. But the rest of us will rejoice about coming out of the moral dark ages. God is smiling on us.

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