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Utah files gay marriage appeal, becomes first state to seek Supreme Court review of state ban

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SALT LAKE CITY — The state of Utah filed its appeal of a gay marriage ruling to the U.S. Supreme Court on Tuesday, becoming the first state to ask the justices to review a state same-sex marriage ban since the high court struck down part of the federal Defense of Marriage Act last year.

Utah officials announced last month they would take the state's case directly to the high court rather than seek a review from the appeals court that in June ruled states cannot deprive gay and lesbian couples of the fundamental right to marry. That decision upheld a December ruling by a federal judge overturning Utah's ban.

The unanswered and "immensely important" question before the Supreme Court is whether the 14th Amendment prohibits state same-sex marriage bans, the state wrote in its filing.

"The issue presented has been 'percolating' for 40 years. Dozens of cases are challenging state marriage laws, and erratic use of stays has created legal chaos," the state wrote. "It comes down to this: Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage. Either way, the court's review is necessary, and this case is the right vehicle to do so."

Peggy Tomsic, lead attorney for the three gay and lesbian couples who sued Utah, said in a statement that they "vehemently disagree with the notion that states can deny one of the most foundational rights to the millions of same-sex couples living across this great land."

Utah attorney general Sean Reyes said in a statement that he has a responsibility to defend the state constitution and hopes the case is resolved quickly.

If the U.S. Supreme court decides to take the case, it would be the first time the top court considers gay marriage since justices struck down part of a law that that prohibited the federal government from recognizing same-sex marriage. Since then, courts around the country have ruled in favor of gay marriage in more than 20 cases.

The high court is under no obligation to take Utah's case, and it could wait for more rulings from other appellate courts with gay marriage cases pending, legal scholars say.

The 4th U.S. Circuit Court of Appeals ruled last week that Virginia's state's voter-approved prohibition on gay marriage is unconstitutional. Virginia Attorney General Mark Herring said Tuesday his state also plans to go to the Supreme Court to review that ruling.

Arguments are scheduled for August and September in three different appellate courts for cases out of Michigan, Ohio, Kentucky, Tennessee, Nevada, Idaho, Wisconsin and Indiana.

In any of the appellate cases, the losing party can appeal directly to the Supreme Court, or first ask for the entire appellate court to review the ruling.

Legal experts say the Supreme Court eventually will take a gay marriage case after one or more appeals court rulings, but that won't happen until 2015 at the earliest.

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