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Judge won’t stop the weddings

Courts » Most counties hand out marriage licenses to same-sex couples while state asks appeals court for stay.

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"For more than 100 years, Utah has adhered to a definition of marriage as between a man and a woman," Lott said. "The court ruled that traditions and history are insufficient reason to deny fundamental rights. ... But we think our laws and histories of the past half century are of the utmost relevance here. This is a fundamental shift away from society’s understanding of what marriage is."

But Tomsic said it’s a moot argument because since Friday, the status quo of Utah has changed.

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"County clerks are obligated to issue licenses to same-sex couples to get married. These couples are getting married. They are married. That’s the new state of affairs," Tomsic said. "The cloud of confusion is in the minds of the state."

Tomsic, who made an impassioned argument before Shelby’s ruling Monday, said the state was regurgitating the claims made to the court before Shelby struck down Amendment 3 to the state constitution, which was approved by Utah voters in 2004.

She also attacked the state’s lack of preparedness, saying if they wanted a stay in the matter, they should have asked for one when the judge took the case under advisement weeks ago.

The judge agreed.

In his ruling, Shelby allowed the state to move forward immediately — up the chain to the 10th Circuit, which will ultimately decide whether the district court’s ruling will stand — but it will be several weeks from now until the appeals court will set a schedule for the filing of briefs, a court official told The Tribune.

According to documents filed with the 10th Circuit on Monday afternoon, state attorneys expect to have a "significant likelihood of success on appeal."

"The district court’s decision is wrong and ignores basic concepts of due process and equal protection," state attorneys wrote. "Neither this Circuit nor the Supreme Court has ever held that a state is constitutionally prohibited from defining marriage as only the legal union of a man to a woman. Neither this Circuit nor the Supreme Court has ever held that the fundamental right to marry includes same-sex marriage."

If things don’t go its way in Denver, said acting Utah Attorney General Brian Tarbet, the state may consider taking the case to the U.S. Supreme Court.

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"We’re driving on," he said. "It’s important that the voice of the people be maintained and we’re going to do that, cognizant of the fact that this is very emotional for our citizens on both sides."

Tarbet, who was replaced Monday when Herbert appointed Sean Reyes as the state’s attorney general, said it’s one of "several options" the state is exploring in the aftermath of Shelby’s ruling.

"This is a complicated case," he said outside the courthouse Monday. "We’re going to hope that we will get to Denver and get a better result."

Reyes, who was asked about the stay during his first day as Utah’s top cop, said he intends to "continue to defend the laws of the State of Utah that have been passed by the citizens directly and through the legislative process."

State attorneys argued before Shelby that irreparable harm would befall the state as well as same-sex couples who marry in Utah should the ruling be overturned.

"No one wins if Utah’s marriage laws are changed back and forth," Lott told the judge. "It puts everyone in the uncomfortable position of knowing that these marriages, should a higher court overturn this court’s ruling, will most likely be void. ... The public has an interest in certainty and in order and avoiding unnecessary expenditures."

Part of this argument was the claim that should Shelby’s ruling be overturned in the future, same-sex marriages entered into now could be later invalidated.

This, Tomsic said, is unprecedented.

"If you are married, it is a constitutionally protected right of privacy, and a fundamental right of marriage," she said outside the courthouse Monday. "If it happens under an existing law — which this rule from this court is — this state cannot take those rights away."

Cliff Rosky, a University of Utah law professor and Equality Utah board member, said it would be unheard of to retroactively invalidate marriage licenses that were legally issued.

"In the history of the U.S., no court has ever retroactively invalidated a marriage that was lawfully entered," he said. "To take away marriage after the fact would be extraordinary and discriminatory against gay couples."

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