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Supreme Court halts Utah gay marriages pending appeal

Published January 7, 2014 11:47 am

Utah attorney general says the Monday ruling puts married same-sex couples in "legal limbo."
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The U.S. Supreme Court on Monday put same-sex marriages in Utah on hold, granting the state's request for a stay while it appeals a ruling that laws banning such marriages are unconstitutional.

The court said the stay would be in place until the 10th Circuit Court of Appeals in Denver makes a decision on Utah's appeal.

The state's stay application was filed with Justice Sonia Sotomayor, who referred it to the whole court, according to the order issued Monday. Sotomayor is assigned to the 10th Circuit Court, which rejected Utah's request for a stay three times.

U.S. District Court Judge Robert J. Shelby also denied the state's request that he stay his Dec. 20 order overturning Amendment 3 while Utah appealed.

The order from the U.S. Supreme Court means clerks in Utah no longer will be allowed to issue marriage licenses to same-sex couples. It is not immediately clear what the order means for couples who have already married.

Utah Attorney General Sean Reyes, who met briefly with reporters Monday, said that this was the "uncertainty" the state hoped to avoid with a stay.

"We don't know the answer yet as to marriages already performed," Reyes said, adding that the state wants to carefully evaluate the implications. "There is not clear legal precedent for this particular situation."

Reyes said it was unfortunate that many Utah citizens are now in "legal limbo."

The state, currently being assisted by Boise attorney Monte N. Stewart, has three weeks to file its initial briefs with the 10th Circuit Court of Appeals. It expects to hire outside counsel to assist with that effort, which could cost as much as $2 million, as quickly as possible; firms interested must submit applications by Tuesday.

Reyes said he believes the decision from the Supreme Court indicates it has an interest in the case.

"Pursuing the legal process to get a final answer from the highest court benefits all citizens of Utah," he said.

Utah Gov. Gary Herbert praised the Supreme Court's order as the "correct decision."

"Clearly, the stay should have been granted with the original District Court decision in order to have avoided the uncertainty created by this unprecedented change," Herbert said in a statement. "As I have said all along, all Utahns deserve to have this issue resolved through a fair and complete judicial process. I firmly believe this is a state-rights issue, and I will work to defend the position of the people of Utah and our State Constitution.

In his decision, Shelby said Utah's ban on same-sex marriage violated equal protection and due process rights of gay couples and demeaned their dignity for no rational reason. His order was the first federal decision on a state law banning same-sex marriage since the U.S. Supreme Court's landmark decision in United States v. Windsor, which struck a provision in the federal Defense of Marriage Act (DOMA).

In its stay application filed with the Supreme Court on Dec. 31, Utah said the refusal of lower courts to grant its request for a stay was "an affront" to the state's and public's interest "in being able to define marriage through ordinary democratic channels."

In a reply filed by the state Monday with the U.S. Supreme Court, Utah said Shelby's ruling is the "starting point for resolution" of what it has described as the "historical and essential" right of Utah and other states to define marriage.

Until the "recurring" question of whether the U.S. Constitution requires recognition of same-sex marriages is resolved, Utah should not be forced to license, perform and recognize such marriages, it said.

The state said attorneys for three same-sex couples who challenged Utah's ban on same-sex marriage "quibble around the edges" and fail to offer any persuasive rebuttal to its argument that Shelby's Dec. 20 order should be stayed while it appeals the ruling.

The plaintiffs filed their response before the U.S. Supreme Court on Friday, arguing that a stay would perpetuate the "undisputed" harm to same-sex couples identified by Shelby and the high court itself in the Windsor decision. They argued that constitutional rights of individuals supersede those of the state when the two are conflict. The plaintiffs' attorneys expressed disappointment at the stay on Monday.

"This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over," said James E. Magleby, who with attorney Peggy A. Tomsic represents the plaintiffs. "Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally."

He said the stay is temporary and is not unusual while an appeal is pending, and it has no bearing on the eventual outcome.

"We were confident when we filed the case in 2013, we were confident when we presented the arguments to the District Court and we remain equally — if not more — confident about our defense of marriage equality before the 10th Circuit," Magleby said in a statement.

Carl Tobias, a University of Richmond law professor and federal court expert, said the Supreme Court order doesn't reveal much except that the stay was granted.

"It does not say that the justices were unanimous," he said, as some have inferred. "In fact, it could have been 5-4, but the dissenting justices could have chosen to not write [to explain their position]."

Nor does it reveal whether the court would be inclined to hear the case after the 10th Circuit Court rules on the matter, which is likely to be in the spring.

"The court may be content to wait for other cases or to see the reasoning in other circuits," Tobias said. "We shall know more after the 10th Circuit decides."

About 1,300 same sex couples have wed in 28 of Utah's 29 counties since Shelby's ruling. Utah County did not provide marriage statistics. Though it isn't clear how the stay might affect those unions, making them no longer legal would be unprecedented, said Clifford Rosky, a University of Utah law professor and Equality Utah board chairman.

"Ultimately, the courts will decide what happens to those marriages," said Rosky, but "never in the history of this country has a court retroactively invalidated a marriage that was legal when it was entered."

The stay is difficult news for those couples and their families, Rosky said, including their "children, parents, brothers and sisters."

Bill Duncan, president of the Utah County-based Marriage Law Foundation, which joined in an amicus filing in District Court, called the order appropriate.

Shelby acted "rashly" in allowing his decision to take effect without granting a stay while the state appealed, he said.

"I'm pleased the state has been given time for that appeal to work itself out rather than rushing ahead," said Duncan, who also is director of the Sutherland Institute's Center for Family and Society.

He noted that U.S. Supreme Court order "suggests that the issue is so important that the court recognizes that there needed to be more deliberation on the question."

"It's interesting and also helpful from my perspective that whole court endorsed the idea that it is not up to one federal judge to overturn Utah's marriage laws without much clearer direction from the U.S. Supreme Court," Duncan said.

As for what happens now to marriages performed while Shelby's decision was in place, Duncan said "we really don't know and no one will know until a later ruling."

The confusion "could have been avoided if Shelby had issued a stay," he said. "That was one of the unwise aspects of his decision."

Jim Dabakis — chairman of the Utah Democratic Party, state senator and newlywed to longtime partner Stephen Justesen — failed "to see what good comes by getting down on one knee and telling children [of LGBT couples], 'Your state really doesn't believe you are a family and you're really a second-class kind of people and you're not as good as the rest of us.'"

"People have the religious right to marry or not to marry whoever they choose, but the state of Utah ought not to be making those decisions when you consider all the wonderful benefits to children that come from the security of having two legal parents," Dabakis said.

LGBT activist Troy Williams said the stay will "raise the stakes" and "help us organize more effectively."

"This changes the dynamic because once you try to stop or take away a person's individual rights and liberties, then you will see our community so fired up unlike ever before," he said. "If you thought the LGBT community was mobilized or organized in the past, you ain't see nothin' yet."

The Sutherland Institute, a conservative nonpartisan policy think tank in Salt Lake City, said the issue also has fired up its supporters. David Buer, communications director, said that after Shelby's ruling, its network of supporters grew more than 100 percent — largely due to an online petition it sponsored asking Utahns to voice support for the state's position.

The debate now will largely center on the 10th Circuit Court. The appellate court has agreed to hear Utah's appeal on an expedited basis, with all filings in the case due by the end of February.

In its filing Monday, the state said the respondents did not dispute that the Utah lawsuit squarely addresses the question left open in Windsor. Neither do they dispute the Supreme Court is "highly likely" to hear the case if the 10th Circuit affirms Shelby's decision, the state said.

Utah also said the respondents failed to address the state's "common-sense" argument, based on sociological studies, that children do better when parented by a mother and father and that permitting only opposite-sex unions increases the likelihood children will be raised in such families.

That provides "at least a rational basis for and, indeed, a compelling interest in the Utah laws that the district court wrongly enjoined," the state said.

And every same-sex marriage that occurs in Utah as a result of Shelby's "unlawful injunction" undermines the right of a state and its people to define marriage in the way they believe will best further the public welfare, it said.

Allowing such marriages to continue "irreparably injures the state, by interfering with its enforcement of its own laws," the state said.

Meanwhile, the respondents failed to identify any "concrete" harm to themselves or other same-sex couples that would occur if a stay is granted, Utah said.

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Utah reactions

The following is a sampling of reactions to Monday's order from the U.S. Supreme Court granting Utah's request for a stay of the Dec. 20 decision by U.S. District Court Judge Robert J. Shelby that found the state's ban on same-sex marriage unconstitutional:

"Utah's Office of the Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court's decision and will not rush to a decision that impacts Utah citizens so profoundly." — Utah Attorney General Sean Reyes

"While it is disappointing that the dreams of many more will be put on hold, we know that in the end justice will be served and no couple will be excluded from this cherished institution." — Chad Griffin, president, Human Rights Campaign

"It was surprising that the 10th Circuit did not grant a stay and disappointing that the district court did not either. When courts are making such dramatic decisions, judicial propriety requires that they take it a step at a time rather than galloping ahead like in a horse race. So the Supreme Court decision is quite unremarkable. The Supreme Court merely said no, we're going to do this in the ordinary way and not rush to judgment." — Lynn D. Wardle, a law professor at Brigham Young University who helped craft Utah's Amendment 3

"These are couples who love each other, and many of them are raising children together. Now that the stay has been granted, they have to worry about whether the marriage that they lawfully entered will be recognized by the courts." — Cliff Rosky, University of Utah law professor and Equality Utah chairman

"Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally." — James E. Magleby, attorney for three same-sex couples who challenged Amendment 3

"Everyone in America should be concerned to see how easily activist judges can cavalierly toss out the will of overwhelming majorities of legislators and voters alike. It's becoming increasingly clear that the people of America need to reclaim their sovereignty and amend the U.S. Constitution to protect marriage as the union of one man and one woman." — Brian Brown, president of The National Organization for Marriage

"Despite today's decision, we are hopeful that the lower court's well-reasoned decision will be upheld in the end, and that courts across the country will continue to recognize that all couples should have the freedom to marry." — Joshua Block, staff attorney with the ACLU of Utah's LGBT project

"We are grateful that the Supreme Court [justices] did understand that this was an inappropriate and a jump-the-gun [decision] by an activist judge, in this instance. For the state of Utah this is a broader issue. State sovereignty is the issue overall. — Cherilyn Eagar, a former congressional candidate and conservative blogger