"Kitchen v. Herbert would be the first same-sex marriage case to reach the high court since its June 2013 decision in United States v. Windsor, invalidating the definition of marriage as between a man and a woman under the federal Defense of Marriage Act. A divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit on June 25 held that the Utah ban was unconstitutional. That ruling left the state with the option of seeking review by the full Tenth Circuit or filing a petition for review with the Supreme Court. Utah Attorney General Sean Reyes announced on Wednesday that he would seek the high court's review. ...The Tenth Circuit was the first appellate court to rule on the constitutionality of a same-sex marriage ban. A decision by the Fourth Circuit in two challenges to Virginia's laws is expected soon. ...The justices have the option of declining to hear the Utah petition. If they do grant review, arguments likely would occur in 2015."
The need for this litigation was not unforeseen. In our recent article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093) published by the Elon Law Review, Elizabeth Oklevitch and I suggested that the rhetoric in Windsor would lead to state challenges such as those faced by Utah, and Virginia (another state challenge we have discussed at FamilyRestoration), in "Federalism or Extreme Makeover of State Domestic Regulations Power? The Rules and Rhetoric of Windsor (and Perry)," available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093. These Supreme Court Opinions express an affirmation (at least rhetorically) of the right of states to regulate family law - yet also ruled to uphold same-sex marriage policy in one case (Windsor) while not even allowing a hearing on the voter-approved state policy upholding marriage in the other (Perry). We suggest this incongruity in jurisprudence represents a sort of extreme makeover of state domestic regulations law.
While the rules stated by the Supreme Court uphold state's rights to stabilize and restore family law policy in marriage, the rhetoric works to deconstruct state regulation of family law. Utah is challenging that outcome, asking the High Court to reconsider it's rhetoric and rules in 2015. Marriage rules and rhetoric greatly matter to family restoration.