On Wednesday, Utah’s attorney general announced that he would forgo an en banc review of his state’s mortally wounded and comically indefensible gay marriage ban, instead appealing the case directly to the Supreme Court. His last-minute maneuvering means that the high court is quite likely to hear the case next term—and have an opportunity to strike down every state marriage ban in the country.
All this talk about “en banc reviews” might sound too arcane and tedious to befit such a major development. But really, this is a simple and savvy move on Utah’s part, at once a convenient shortcut and a bit of a Hail Mary pass. Utah’s marriage ban is already on the thinnest of legal ice: Last month, a three-judge panel on the 10th Circuit affirmed a lower-court ruling striking down the state’s marriage ban as a violation of the 14th Amendment. Because that panel represented only a fraction of the 10th Circuit as a whole, Utah has the right to appeal the ruling to all the judges of the circuit. (The judges can, of course, turn down an en banc request.)
But such an appeal would surely take months—months during which several more states and circuit courts are certain to strike down more marriage laws, making Utah’s argument seem even more archaic. (In fact, shortly after Utah announced its decision to forgo en banc review, its next-door neighbor Colorado saw its own gay marriage ban fall.) The appeal would also constitute a total waste of time, since everybody knows this issue must ultimately be resolved by the Supreme Court. So instead of wasting time, money, and paperwork on a half-measure, the state is taking its case directly to the justices’ doorsteps.
In an ideal world, Utah’s conservative governor and attorney general would simply give up on their state’s marriage ban, as did Pennsylvania’s Republican governor. But failing that, they’ve landed on the second-best option—let this absurd piece of codified bigotry die a speedy death. At this late date, it’s hard to believe that anyone in Utah actually thinks the state’s marriage ban can survive the Supreme Court’s review. Those few remaining holdouts, however, had better brace themselves: The state just brought its own law straight to the executioner’s door.
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