States Ask for Definitive Gay Marriage Ruling

(CN) - Noting that "the legal challenges to state marriage laws have deteriorated into a morass," 17 states urged the U.S. Supreme Court to intervene in the appeals concerning Oklahoma and Utah since they lack the "jurisdictional, standing, or procedural pitfalls" of other cases.

The 17 states led by Colorado filed identical petitions Thursday in Smith v. Bishop and Herbert v. Kitchen, cases in which the 10th Circuit struck down gay-marriage bans in Oklahoma and Utah. Colorado is joined in its petition by Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Montana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, West Virginia and Wisconsin.

They note that they are among 31 states that have "been hauled to court," to defend their traditional marriage law. Currently, 89 cases challenging states' bans on same-sex marriages are pending, the brief says.

The litigation is the fruit of the U.S. Supreme Court's ruling in United States v. Windsor last year that found it unconstitutional to deny same-sex couples the benefits enjoyed by married couples. Many federal courts have since used that as their precedent for overturning state bans against same-sex marriage.

All of the petitioning states oppose same-sex marriage and argue that such rulings trample the public's right to determine the definition of marriage.

Since last summer, seven states have legalized same-sex marriage, "almost entirely through judicial intervention, not democratic means," the brief says. Prior to that, the 12 states legalizing same-sex marriage did so after public votes. The number of states recognizing same-sex marriages has since risen to 19.

The amici states contend these pending lawsuits have created a flurry of contradiction and confusion in courts across the country. The brief claims the public has "witnessed conflicting positions between state clerks and other state officers regarding the authority to issue marriage licenses contrary to existing state law."

"The question presented in this petition goes to the heart of the states' traditional role in regulating marriage," according to the brief.

Oklahoma and Utah's laws represent the ideal vehicle for the U.S. Supreme Court to resolve the issue since they lack "apparent jurisdictional, standing, or procedural pitfalls," according to the brief.

South Dakota Attorney General Marty Jackley said as much in a statement on the brief.

"The attorneys general are requesting the court to answer this question through the Utah and Oklahoma cases that do not have the procedural defects created by Attorney General Eric Holder and the California state officials' refusal to defend federal statutes and state constitutional amendments defining marriage that occurred in the previous U.S. Supreme Court decisions handed down in June of 2013," Jackley said.

Resolution is necessary because "these cases are divisive and costly, not only in terms of money and man power, but in terms of respect for the democratic process and deliberation undertaken by millions of voters where the nature of marriage has recently been debated," the brief states.

In Colorado, for example, three clerks began issuing same-sex marriage licenses despite the still-valid traditional definition of marriage in the state's constitution, according to the brief.

"Same-sex marriage cases have created a virtual cottage industry of procedural litigation regarding stays pending appeal," the brief continues.

The states added that "prompt review of this case would go a long way to minimizing state exposure to the concrete burdens of continued, but redundant, litigation of the constitutional issue here presented."

Jackley in South Dakota also emphasized finances, noting that the brief he joined "offers the most realistic and cost effective approach to defending both our state constitution and statutory law."

"It remains the state's position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts," Jackley said.

In the brief, the 17 states said: "Only this court's unifying voice can restore order in this public conflict over the nature of constitutional rights and state marriage laws."

The petition comes a little over a week after a number of gay-rights organizations, 15 states and scores of businesses submitted amicus briefs to the high court, asking the justices to take up Utah's marriage case and rule in favor of the three same-sex couples fighting to legalize gay marriage nationwide.In their briefs they argue Utah's gay marriage ban, and others like it, violate the 14th Amendment, depriving Americans of their rights to due process and equal protection.

Massachusetts leads a separate amicus brief, also filed Thursday, in the same two cases, joined by 14 other states that support gay marriage. Those states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Pennsylvania, Vermont and Washington.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit