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Same-sex couples married in Utah may have rights in 10 days

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(Keith Johnson | The Salt Lake Tribune) Jason Dautel, left and Micah Unice kiss after being married by officiant Derek Snarr outside the Salt Lake County clerks office, Friday, December 20, 2013. A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.

In 10 days, same-sex couples married in Utah may be able to apply for spousal benefits.

A federal appeals court Friday denied Utah’s request for a stay that would have indefinitely halted all movement toward providing gay and lesbian spouses benefits, pending the state’s appeal of a lower court’s ruling that ordered Utah to honor those unions.

A three-judge panel at the 10th Circuit Court of Appeals denied the state’s request late Friday, but also extended a temporary stay through July 21, giving the state time to ask the U.S. Supreme Court to intervene.

That gives Utah 10 days to appeal to Justice Sonia Sotomayor, who oversees the circuit, and reiterate its argument that allowing same-sex couples to receive spousal benefits before a federal appeals court has ruled on whether the state is legally obligated to do so would undermine the legal system and the state’s right to an appeal.

And that’s exactly what the state is going to do.

In a statement released by the attorney general’s office, Utah announced its intention to promptly file an application for a stay with the U.S. Supreme Court “to avoid uncertainty.”

“The State recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen v. Herbert is resolved,” the statement said, referencing Utah’s other pending same-sex marriage appeal aimed at reviving a voter-approved ban on gay and lesbian unions.

While the state’s intentions were not surprising to Jonell Evans, for whom the marriage recognition suit is named, or her wife Stacia Ireland, the women said, it doesn’t make it easier to accept.

“We’ve all waited our whole life for these rights,” Evans told The Tribune. “We’d like not to, but we’ll continue to wait if we must.”

Evans and Ireland, who hadn’t heard about the 10th Circuit’s decision until contacted by a reporter, said they were filled with hope.

“It feels like [marriage] was ours for a few days and then it was ripped away from us. Now we might get to have it back,” Evans said, her voice cracking with emotion. “We have to celebrate each victory before we cry over each delay.”

Ireland, who has suffered heart problems and worries Evans won’t be legally protected should her health again take a turn for the worse, added there are Utah families who can’t afford more delays.

“We have tears of joy for all Utah families,” Ireland said. “It is time for our state leaders to defend our constitutional rights for marriage equality.”

Lawyers with the American Civil Liberties Union, who represent the four plaintiff couples in the case, said they are prepared to respond to the state’s request with a brief opposing any further delay granting same-sex couples married in Utah with rights and benefits of their opposite-sex counterparts.

“The 10th set a pretty tight schedule, and we’re happy for the expedience to get more resolution for the hundreds of couples who are affected,” ACLU attorney Leah Farrell said. “These are families and marriages that are being lived every day. Letting them proceed with their lives and have the protections that marriage allows can only be a benefit for our community.”

In order to persuade the 10th Circuit judges to grant a stay in the first place, Utah was required to demonstrate how allowing married same-sex couples to apply for spousal benefits would have caused “irreparable harm.” The state also had to demonstrate a strong likelihood of success in its appeal — demonstrating that U.S. District Judge Dale A. Kimball had abused his discretion by ordering Utah to recognize gay and lesbian marriages performed in the state.

The court ruled Friday it had not done so.

“We conclude that [Utah has] not made showings sufficient to warrant a stay pending appeal,” the order stated.

The decision came from the same three judges who last month affirmed that Utah’s ban on same-sex unions violated the Fourteenth Amendment of the federal constitution and denied citizens their constitutional rights to due process and equal protection.

But as in last month’s ruling, the judges were divided.

Judges Carlos F. Lucero and Jerome A. Holmes, who authored the majority opinion last month, outlining why Utah’s gay marriage ban was deemed unconstitutional, also seem to have authored the court’s denial of Utah’s request for a stay.

Judge Paul J. Kelly, who wrote a dissent that took issue with the characterization of marriage as a “fundamental right,” issued another dissent Friday, in which he argued allowing same-sex couples to apply for spousal benefits would add to “the chaos begun by the district court in Kitchen.”

Kelly wrote there would be multiple types of harm done to Utah should gay and lesbian spouses begin to apply for in-state benefits before the appeal had been settled.

“In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the state will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration,” he wrote. “A stay would simply maintain the status quo until this case ... comes to a resolution via the normal legal process.”

If the country’s high court does not act to impose a stay in the Evans v. Utah lawsuit come 8 a.m. on July 21, gay and lesbian couples married in Utah may begin to apply for in-state benefits, which includes the right to adopt.

More than 1,000 couples married in Utah during a 17-day window when such unions were legal following U.S. District Judge Robert J. Shelby’s landmark ruling on Dec. 20. The weddings stopped when the U.S. Supreme Court intervened and issued a stay in that case, halting any further same-sex marriages.

The 10th Circuit Court of Appeals had denied Utah a stay in that case, too, before ruling against the state five months later.

Utah has announced its intent to appeal that case to the U.S. Supreme Court, making it the first challenge of a state ban on same-sex marriage to come before the nation’s nine justices.

mlang@sltrib.com

Twitter: @Marissa_Jae

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