Utah has asked the 10th Circuit Court of Appeals for more time to prepare initial arguments in defense of the state’s same-sex marriage ban.
The state asked for a 10-day extension of the Jan. 27 filing deadline set by the court to ensure it has adequate time to prepare a "fulsome, detailed and quality" brief on the significant constitutional questions the case raises.
Update: Plaintiffs file opposition
Attorneys representing three same-sex couples who challenged Utah’s ban on gay marriage have asked the 10th Circuit Court to reject the state’s request for more time to file its opening brief, saying doing so would result in continued harm to the plaintiffs as well as thousands of other families in Utah.
In a response filed Saturday, the plaintiffs’ attorneys said the state failed to show an extension is warranted because of extreme hardship, extraordinary circumstances or the case’s complexity — criteria required by the court’s own rules.
They said there was no reason for the state to delay work on its opening brief during its search for outside counsel, since its arguments will be limited to issues raised in the district court. The state has known since Dec. 24 that the 10th Circuit had set an expedited briefing schedule for its appeal, the response states.
The plaintiffs’ attorneys also disagree with the state’s suggestion that the court pair appeals from Utah and Oklahoma, saying there are significant differences in the legal issues involved in each case.
Among them: In Oklahoma, the district court judge ruled plaintiffs did not have standing to challenge the failure of the state, under the umbrella of the federal Defense of Marriage Act, to recognize valid marriage licenses issued by other states.
In Utah, the plaintiffs focused on a state law barring such recognition and prevailed.
The response also said Reyes has publicly acknowledged the couples are in a “very difficult” and “untenable” situation because of the ongoing litigation. It is unreasonable to extend that harm, the plaintiffs’ attorneys said.
“Utah’s continued enforcement of its discriminatory marriage laws while this appeal continues is inflicting on Utah same-sex couples and their families both dignitary and practical harms that are deeply personal and also of constitutional dimension,” the response states.
"Circumstances have changed significantly since the expedited schedule was set and a short extension is now warranted," the state said in its motion.
In its motion, the state said the case has implications not just for Utah but for all states and residents within the 10th Circuit’s jurisdiction — in particular Oklahoma, where a federal judge this week struck down an identical amendment — and even throughout the country.
It said the move by the U.S. Supreme Court to grant "a relatively rare" stay of the Dec. 20 decision legalizing same-sex marriage in Utah signals the high court’s interest in the case and its desire that the appeal "be handled in an orderly way befitting the important issues being addressed."
Utah also noted it has just brought on board a team of legal experts, including Gene C. Schaerr, to lead its defense of Amendment 3 and other state laws that bar gay marriage.
In its order setting an expedited briefing schedule, the 10th Circuit had said time extension requests were "very strongly discouraged, and will be considered only under extraordinary circumstances." However, the court had already proposed that its fast-track schedule be extended by two or three days if needed, the state said.
In the 17 days before the U.S. Supreme Court stayed Shelby’s order, more than 1,300 same-sex couples throughout Utah received marriage licenses.
Attorney Peggy A. Tomsic, who with attorney James E. Magleby represents the plaintiffs who challenged Amendment 3, said they will oppose the state’s request.
"We will expeditiously file an opposition because a delay in this appeal causes significant harm every day for our clients and for the 1,300 same-sex couples who were legally married and whose marriages Gov. Herbert won’t recognize," Tomsic said.
Utah said the 10th Circuit was likely to receive a "nearly identical" appeal of the Oklahoma ruling and may want to place the two cases on the same schedule to conserve judicial resources and aid parties interested in both cases.
In fact, Tulsa County, the defendant in the Oklahoma case, and the Alliance Defending Freedom filed a notice of appeal with the 10th Circuit on Thursday.
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