The Attorney General's Office announced Wednesday it is sending the case to the U.S. Supreme Court.
That means the state will not ask the 10th Circuit Court of Appeals to reconsider its decision rendering Amendment 3 unconstitutional.
"The state has a very heavy burden to meet now. They first have to persuade the four justices to take the case. And second, to reverse Judge Shelby, the 10th Circuit and all 20 courts who have decided this issue," said University of Utah Law Professor, Clifford Rosky.
That's why supporters of same-sex marriage say the state should drop it.
"What we have here are Utah families, couples, children who are living in legal limbo. And the governor could choose today to end this legal matter if he would do what republican governors all across the nation are doing and that is not to appeal this ruling," said Brandie Balken with Equality Utah.
Governor Herbert disagrees with those governors and has said it's not his place to pick and choose which laws to defend.
"You've got to play to the final buzzer and that is the Supreme Court. That's what the people of Utah would expect I think on all sides of the issue. It will not bring finality, it will not bring clarification, in fact it will leave a state of chaos if we don't do that," said Herbert after the 10th Circuit decision in June.
Now there are two possibilities for Kitchen v Herbert.
The Supreme Court could refuse to hear it and the 10th Circuit decision would stand for all states in the jurisdiction.
Or the court could take the case and that ruling would define same-sex marriage law for the entire country.
The Supreme Court is in recess until October, a decision to take the case or not could come at any time after that.