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"Officials with authority to defend the Utah laws challenged here are defending them vigorously," the state said.
Past practices, the state said, is for the court to grant stays in matters involving invalidation of state laws that involved federal questions.
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
"That practice appears to reflect a general and entirely appropriate policy that if a state statute or constitutional provision is to be invalidated under the banner of the federal Constitution, the people of the state are entitled to have that issue resolved by the nation’s highest court," the state said.
If the 10th Circuit, which has set a filing deadline for late February, affirms Shelby’s decision there will be a "clear conflict" with an 8th Circuit Court of Appeals decision upholding a Nebraska constitutional amendment that is largely indistinguishable from Utah’s amendment, the state said.
Should that occur and the court grant review, Utah says it is confident a majority of the Supreme Court — a coalition it predicts would include justices Antonin Scalia, John G. Roberts and Samuel A. Alito, who with Justice Thomas Clarence dissented in the Windsor case — will find in its favor. The state’s perspective is bolstered by the fact Shelby found no animus behind Utah’s ban on same-sex marriage.
Shelby "begged the question in presuming that gays and lesbians are entitled to the same judicial protection accorded racial minorities, especially when the traditional definition of marriage exists not to oppress homosexuals but to further other vital social ends," the state said. That places the issue of same-sex marriage in "stark" contrast with Loving v. Virginia, the 1967 ruling that ended bans on interracial marriage.
It said Shelby’s reasoning that tradition and history were insufficient reasons to deny fundamental rights to individuals was flawed, pointing to the fact that same-sex marriage received recognition only within the past decade and only by a minority of states.
And it criticized Shelby’s finding that there was no rational basis for restricting marriage to opposite-sex couples, which a "large and growing body of social science research" has concluded is the best environment for child rearing.
"These are the core ‘legislative facts’ on which legislatures and voters throughout the nation have relied in repeatedly limiting marriage to man-woman unions," the states said.
A state that allows same-sex marriage "necessarily loses much of its ability to encourage gender complementarity as the preferred parenting arrangement," the state said. "And it thereby substantially increases the likelihood that any given child will be raised without the everyday influence of his or her biological mother and father — and indeed, without the everyday influence of a father or a mother at all."
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