Attorneys for three couples who challenged Utah’s ban on same-sex marriage urged the U.S. Supreme Court on Friday to deny the state’s application for a stay, saying two lower federal courts already have rejected the issues it raises.
Attorneys James E. Magleby and Peggy A. Tomsic also note that the 10th Circuit Court of Appeals has set an expedited hearing schedule to review the state’s appeal, making a stay unnecessary and premature. Filings to the 10th Circuit are due by the end of February, after which the court will take it under consideration.
U.S. District Court Judge Robert J. Shelby ruled Dec. 20 that Utah’s ban on same-sex marriage violated due-process and equal-protection provisions of the 14th Amendment to the U.S. Constitution. Since then, nearly 1,000 same-sex couples have married in Utah.
This is the state’s fifth attempt to get the order stayed. Shelby denied it once, and the 10th Circuit turned down the state’s stay request three times. Both courts held that the state’s likelihood of prevailing on appeal was unlikely, the plaintiffs’ attorneys said.
Associate Justice Sonia Sotomayor, who oversees the 10th Circuit, may either review the stay application herself or refer it to the full court for consideration. If Sotomayor issues a decision on her own, the losing party could ask another justice to reconsider the matter; by tradition, it would go to the full court.
If the whole court is handed the application, five justices must agree to a stay. There is no set time within which a decision must be made.
Carl Tobias, a University of Richmond law professor and federal court expert, is among observers who believe a stay is unlikely to be granted for "a number of reasons."
"Some have to do with judicial economy and respect for lower court rulings at this preliminary stage and others of which may have to do with the merits, as reflected in [United States v. Windsor]," he said. "It may be difficult to secure five votes for a stay, especially if five justices in the Windsor majority believe that its reasoning applies in this case."
In its stay application filed Tuesday, the state said the case "squarely presents the question that this court expressly left open" in its decision in United States v. Windsor — that is, whether states may bar same-sex couples from civil marriage and refuse to recognize marriages performed in other states. In the Windsor decision, the Supreme Court struck a provision in the Defense of Marriage Act [DOMA] as an unwarranted federal intrusion because it barred same-sex couples from receiving federal benefits even in states where they were legally married.
That finding, according to Utah, preserved state authority to regulate and define marriage.
Magleby and Tomsic say the court did not rely on federalism in its Windsor decision, but rather on due-process rights guaranteed by the Fifth Amendment of the Constitution and affirmed that state marriage laws must pass constitutional scrutiny. The protected liberty interest in marriage identified in the Windsor decision "supports invalidation of Utah’s refusal to recognize the lawful marriages of same-sex couples who married in other states," they said.
A federal judge who ruled in a recent Ohio case found it was unconstitutional to not recognize a surviving same-sex spouse on a death certificate, a recognition that "constitutional harm inflicted by the government’s refusal to recognize an existing marital relationship is no less when it is a state, rather than the federal government, that denies recognition," the attorneys said.
They said Shelby determined that in previous rulings, the U.S. Supreme Court recognized the freedom to marry as a fundamental right based on individual rights to liberty, privacy and freedom of association — rights that under the 14th Amendment supersede states’ rights when there is a conflict between the two. Shelby also found the state did not present even a rational basis, the lowest standard of review, for denying same-sex couples’ right to marry, they said.
"These precedents strongly support the district court’s determination that persons in same-sex relationships have fundamental interests in liberty, privacy and association that are infringed by state laws categorically barring them from the right to marry," the attorneys said.
Shelby’s ruling also noted that the state failed to show a "rational link" between a ban on same-sex marriage and its interest in having children raised by opposite-sex, married couples. But he did find that laws barring same-sex marriage harmed children in such households "for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples."
While Windsordid not decide the "ultimate" issue of whether a state is constitutionally required to let same-sex couples marry or to recognize their existing marriages, its reasoning and analysis "strongly" support the conclusions reached by the lower courts in declining to issue a stay, the attorneys said.
The plaintiffs’ lawyers said that the state has a "heightened burden" to show that the lower courts were "demonstrably wrong" in denying the stay request. The state also has to show its rights would be irreparably harmed if a stay is not granted and that it is likely to prevail on appeal.
The state, they said, has not done so.
Utah has "not cited to a single case in which the court has granted a stay of a district court order pending appeal when the appellate court has already denied a stay under circumstances even remotely similar to the circumstances here," they said.
Utah also failed to address equal-protection issues based on sexual orientation and sex, which require a higher level of scrutiny, they said.
"As the district court correctly held, the [Supreme Court’s] analysis of the profoundly stigmatizing impact of laws that single out same-sex couples for discrimination with respect to marriage applies equally to Utah’s laws excluding same-sex couples from the ability to marry," the attorneys said. "These laws stigmatize and harm same-sex couples and their families, while providing no benefit to others."Next Page >
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