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Gay marriage's latest frontier: US state courts
By BRADY McCOMBS and MARK SHERMAN
Associated Press
2013-12-26 03:01 AM

SALT LAKE CITY (AP) -- Advocates on both sides of the gay marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of a federal ban on gay marriage would create a pathway for states to act.

They were right.

In the six months since the decision, the number of states allowing gay marriage has jumped from 12 to 18. Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week.

Utah's case and another in Nevada next will be heard by federal appeals courts, putting them on the path toward the Supreme Court. Ohio's case, which recognized same-sex death certificates, also likely will be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

It may not be that simple.

The cases on the path to the Supreme Court differ little from another case justices refused to hear in June. That case, from California, related to a constitutional amendment defining marriage as between a man and a woman.

If the justices had acted, it would have struck down gay marriage prohibitions across the country.

That convinces some legal scholars that the high court won't take up the issue again so soon. In a way, they've already passed the responsibility to the states, some say, including language in its ruling in June on the Defense of Marriage Act saying the law relegates same-sex marriages to second-class status.

That language makes it clear that state bans on gay marriage are ripe for challenge, said Andrew Koppelman, a professor of law and political science at Northwestern University. Language from both Justice Anthony Kennedy's majority opinion and Justice Antonin Scalia's biting dissent have appeared prominently in subsequent court challenges and rulings, including in Utah and Ohio.

"The Supreme Court has given them ammunition to go there, if that's where they want to go," Koppelman said.

Only one-third of Americans oppose gay marriage, down from 45 percent in 2011, an AP-GfK October poll showed.

With Utah's ban struck down, 28 states still have constitutional prohibitions on same-sex marriage. Another four states -- Indiana, Pennsylvania, West Virginia and Wyoming -- do not permit it through state laws.

Attorneys and proponents say this is the civil rights issue for the current generation, comparing the scenes of gay couples marrying to blacks breaking racial barriers in the 1960s.

More state rulings in favor of gay marriage could be coming in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere. Utah is home to The Church of Jesus Christ of Latter-day Saints, which still teaches its members homosexuality is a sin despite a softening of their rhetoric in recent years.

"The ruling has had a symbolic impact already," Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. "It is recognition that the nation's attitudes, from public to legislative to judicial, are changing very rapidly in all parts of the country."

A federal judge in Michigan will hear testimony from experts in February before deciding whether to throw out the state's constitutional ban on same-sex marriage. Two federal lawsuits in Virginia, including one being led by the same legal team that challenged California's ban, are moving forward.

As each state's same-sex marriage ban is struck down, it serves as a domino effect helping make the next legal challenge easier, said Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide.

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Sherman contributed from Washington.

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Follow Brady McCombs at https://twitter.com/BradyMcCombs.

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