The state of Utah asked the U.S. Supreme Court on Tuesday afternoon to put same-sex marriages in Utah on hold while it appeals a lower court ruling in the 10th Circuit Court of Appeals, saying each marriage that occurs is "an affront" to the state’s and the public’s interest "in being able to define marriage through ordinary democratic channels."
In its application, Utah said a stay is warranted because the dispute over U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling "squarely presents the question that this court expressly left open last term in United States v. Windsor." That is: Do states retain a "historical and essential" authority to define the marital relation? In the Windsor case, the court upheld a state’s authority to make laws regarding marriage, Utah argues.
The state of same-sex marriage in the U.S.
Thirty-two states ban same-sex marriage. With U.S. District Court Judge Robert J. Shelby’s ruling on Dec. 20, Utah became the 18th state where same-sex marriage is legal.
Same-sex marriage was legal in the following states, through one mechanism or another, before the U.S. Supreme Court issued a pair of rulings in June on the issue:
Maryland (January 2013)
New Hampshire (2010)
New York (2011)
Same-sex marriage was affirmed or made legal in the following states after the U.S. Supreme Court decisions in June in the Windsor and Proposition 8 cases:
California (upheld June 28)
Illinois (takes effect in June 2014)
New Jersey (October)
New Mexico (December)
Rhode Island (August)
The state of Utah posted a notice Tuesday seeking applications from outside counsel qualified to help it appeal a court ruling overturning its ban on same-sex marriage. In its notice, the state said Utah Attorney General Sean Reyes will choose the applicant who submits a “proposal most advantageous to the state” based on staff quality and cost.
The notice says proposals must include fee caps for an appeal to the 10th Circuit Court as well as U.S. Supreme Court. The cost has been estimated at up to $2 million. It also says the contract may be “terminated for the convenience” at the discretion of Reyes.
Interested parties have until Jan. 7 to apply. For more information, visit: http://1.usa.gov/1cG2sCM
"By contrast, this case involves not just a refusal by the federal government to accommodate a state’s definition of marriage, but an outright abrogation of such a definition," the state said.
Shelby ruled that Amendment 3 to Utah’s constitution, approved by 66 percent of voters in 2004, and two related state laws violated due process and equal protection rights of same-sex couples by denying them the right to civil marriage.
Monte N. Stewart, a Boise attorney and founder of the Marriage Law Foundation, joined the Utah Attorney General’s Office in making the application — the state’s fifth attempt to block same-sex marriage in Utah while it appeals Shelby’s ruling. It also posted a notice Tuesday seeking an outside firm’s help.
Attorney James E. Magleby, who with Peggy A. Tomsic represents the three couples that challenged Utah’s ban, criticized the state’s continued push for a stay, particularly given the 10th Circuit Court of Appeals expedited schedule to hear the case.
"We are disappointed that the state of Utah will spend millions of dollars in taxpayers’ money to attempt to reinstate laws which deny due process and equal protection to all of Utah’s citizens," Magleby said in a statement. "It doesn’t have to be this way."
Magleby held out the example of New Jersey Gov. Chris Christie, who this fall declined to appeal a similiar ruling and instead "put a divisive issue in the past."
Associate Justice Sonia Sotomayor, who is assigned oversight of cases arising from the 10th Circuit, has given attorneys for the three same-sex couples until 10 a.m. on Friday to file a response to the state’s stay request.
Sotomayor may review the application on her own or refer it to the full court. If Sotomayor decides it on her own and declines to grant a stay, the state could then seek an opinion from another justice; by tradition that justice would refer it to the whole court for consideration.
In reviewing a stay request, the court considers four general criteria: likelihood that four justices will find the case meritorious enough to grant certiorari on appeal; whether there is a "fair prospect" a majority would reverse the lower court’s decision; irreparable harm caused if a stay is denied; and, in close calls, relative harms to the applicant, respondent and public interests.
Whatever the outcome, it is possible that one or more justices may choose to memorialize his or her views in the decision — particularly if there is an ideological divide on the court — that sheds light on the court’s early view of the case, said Stephen Wermiel, who teaches constitutional law at American University in Washington, D.C.
"The movement toward legalization of same-sex marriage is rapid around the country and the unfairness of denying same-sex marriage received a pretty compelling argument in the Supreme Court’s defense of marriage [hearing] last June," Wermiel said. "That part of it makes a pretty good argument for denying the state."
On the other hand, "the traditional guidelines the court follows make a good argument for granting a stay," Wermiel said.
The application recasts some of the state’s arguments in previously unsuccessful attempts to get a stay.
It says refusals by Shelby and the 10th Circuit to grant a stay created a "rush to marry" at county clerk’s offices in Utah. Nearly 1,000 couples throughout the state wed the week after the ruling.
Those decisions were an "affront" to the court’s "unique role as final arbiter of the profoundly important constitutional question that it so carefully preserved in Windsor," the state said, and could lead to an "enormous disruption" to the state and its citizens of potentially having to later "unwind" those marriages if the state prevails.
"Constitutional rights do not spring into existence by mass political activity triggered by the decision of a single district court judge," the state said.
The state leans heavily on the court’s decision in Windsor, which struck down a section of the Defense of Marriage Act that prohibited extension of federal benefits to same-sex couples even in states where such unions are legal. That affirmed the right of states to regulate marriage, Utah argues.
There is "at least a good prospect that a majority of this court will ultimately hold the [Utah] district court’s far more intrusive order and injunction invalid, and in so doing vindicate the prerogative of Utah and its citizenry to retain the traditional definition of marriage if they so choose," the state said.
Unlike the Hollingsworth v Perry case, the California Proposition 8 case the court heard last March but later declined to rule on because of standing issues, there are no jurisdictional defects in Utah’s case, the state said.Next Page >
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