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(Steve Griffin | The Salt Lake Tribune) Gage Church signs his marriage certificate after he and his husband, Tim Sharp, were married by Father Robert Trujillo, of Glory To God Old Catholic Church, at the Hampton Inn Suites in Ogden, Utah Monday, December 23, 2013. Volunteer clergy were performing marriage ceremonies for couples across the street from the Weber County Clerk's Office in downtown Ogden.
Utah same-sex couples ask for immediate ruling on stay
Marriage » The plaintiffs say Utah’s attorney general waited until the last minute to appeal.
First Published Jun 06 2014 03:07 pm • Last Updated Jun 06 2014 10:26 pm

The same-sex couples suing the state over its reluctance to legally honor their Utah marriages have asked a federal appeals court to rule immediately and deny the state’s request to halt all movement in allotting these couples spousal benefits.

In a motion filed with the 10th Circuit Court of Appeals on Friday afternoon, the three plaintiff couples in the case accused Utah’s attorney general of waiting until the last-minute to file an appeal.

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This last-minute filing, they argued, forced the appeals court to issue a stop-gap Thursday that prevents any same-sex couples from applying for marriage benefits in Utah until the court has had a chance to examine the merits of the state’s request for a permanent stay.

American Civil Liberties Union attorney John Mejía, who represents the plaintiffs in this case, wrote that Utah "took advantage of the courtesy extended by" U.S. District Judge Dale A. Kimball when the judge allowed them 21 days to respond to his ruling — mandating that the state honor same-sex marriages performed in Utah during a 17-day window when such unions were legal.

The judge’s original grace period was set to expire on Monday.

"This left only two business days remaining before the district court’s injunction was to go into effect," Mejía wrote in the court motion. "This court should not reward [Utah’s] decision to sit on their hands for over two weeks and then seek a last-minute extension of the stay based on time constraints that their own delay created."

A panel of three federal judges in Denver issued a temporary stay on Thursday that extended Kimball’s three-week hold so the court could decide whether a permanent stay — that would be in effect until the Evans v. Utah appeal is resolved — is merited in this case.

If such a stay is imposed, the more than 1,000 gay and lesbian couples whose marriages were issued and solemnized in Utah will continue living in the "legal limbo" of not knowing whether their marriages are, or will be, recognized under Utah law.

Attorney General Sean Reyes said Thursday that there was no delay tactic in the state’s decision to file its appeal when it did.

"We did what competent lawyers do and undertook a careful and well-researched analysis of all options, including implementation or appeal of the court’s order," Reyes told The Tribune in a written statement. "For counsel to mislead people by feigning ignorance or disadvantage when [the plaintiffs], themselves, rejected offers for more time that our office made in good faith is beneath them."

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Friday’s motion became the latest move in the case after the state announced late Wednesday it would appeal Kimball’s ruling.

On May 19, Kimball ruled that Utah must recognize and imbue all same-sex marriages performed in the state with the same rights and privileges afforded to married opposite-sex couples. He declared the state’s reluctance to do so in violation of the couples’ constitutionally protected rights.

More than 1,000 same-sex couples were granted Utah marriage licenses after U.S. District Judge Robert J. Shelby on Dec. 20 overturned Utah’s ban on same-sex marriage. For the next 17 days, gay and lesbian unions were legal in the state.

Gov. Gary Herbert ordered county clerk offices to adhere to the judge’s ruling and issue marriage licenses to all couples seeking them — regardless of the gender of the applicants.

The weddings stopped when the U.S. Supreme court issued a stay until the state could make an appeal to the 10th Circuit in defense of Utah’s voter-approved Amendment 3.

The state has argued that marriages performed in the wake of Shelby’s decision may be impacted by Utah’s landmark case against the same-sex marriage ban — Kitchen v. Herbert — should the 10th Circuit, or, ultimately, the U.S. Supreme Court, side with the state.

But Judge Kimball ruled last month that regardless of what happens with the Kitchen lawsuit, denying married same-sex couples the rights afforded to their opposite-sex counterparts from the moment their unions are solemnized is an unjustifiable harm that violates their right to due process as guaranteed by the 14th Amendment.

"The district court correctly concluded that [Utah’s] unconstitutional attempt to strip recognition from legally valid marriages imposes severe and irreparable harm on plaintiffs and other same-sex couples," Mejía wrote in Friday’s motion. The state "should not be allowed to continue perpetuating that harm through a stay pending appeal."

To receive a permanent stay from the 10th Circuit, Utah will have to convince the court the stay is necessary to maintain order and also that Utah has a high chance of likelihood on appeal.

The 10th Circuit has been the subject of elevated interest in recent weeks as Utah and the rest of the nation await what may be the first appellate court finding on whether state same-sex marriage bans violate the federal constitution.

As of Friday, every state in the country with a ban on gay and lesbian unions had been challenged in court. A ruling from the 10th Circuit would set a precedent in these cases and would immediately affect marriage bans in the states over which it presides: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

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