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US state courts set to take on gay marriage issue after June ruling

SALT LAKE CITY, Utah--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.

β€œThe 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 β€” Indiana, Pennsylvania, West Virginia and Wyoming β€” do not permit it through state laws.

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