SALT LAKE CITY – The Utah Attorney’s General’s Office announced Tuesday it would appeal to the U.S. Supreme Court for an emergency stay on the lower court orders that have opened the door to same-sex marriages in Utah. The announcement came Tuesday following a denial by the U.S. Tenth Circuit Court of Appeals. However, the filing of the state’s appeal is being delayed.
“The Attorney General’s Office is preparing an application to the United States Supreme Court requesting a stay of the district court’s order,” the Utah Attorney General’s Office said in a statement Thursday. “Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days. It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible.”
Justice Sonia Sotomayor is assigned to the Tenth Circuit Court and will be the one who will receive Utah’s appeal for a stay. She can rule on the appeal herself or forward the appeal to the Supreme Court proper.
In June, Sotomayor joined in the majority opinion of the Supreme Court when it held that the Defense of Marriage Act, a federal version of Utah’s Amendment 3 currently being litigated, violated basic due process and equal protection principles applicable to the federal government. The Supreme Court held that DOMA injured the very class that a state law sought to protect; in that case, it was New York state law allowing same-sex marriage. The Court found that it would be untenable for a same-sex couple to live as married under state law but unmarried under federal law. It therefore deferred authority for defining and regulating marriage to the states.
However, that opinion may suggest what can be expected from Sotomayor in the days to come. While the Supreme Court deferred to the states, it yet observed the difficulty of a marriage law that includes some while excluding others. It said: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages ….” In protecting one class, marriage between a man and a woman, the Court saw the statute injuring another. That opinion in full is included in resources at the end of this report.
Should Sotomayor rule against Utah, the state can still make a direct appeal to the Supreme Court as a whole.
A stay would halt same-sex marriage statewide, which began Friday after federal district Judge Robert Shelby struck down Utah’s voter-approved same-sex marriage ban as unconstitutional. Over 700 same-sex marriages are estimated to have been conducted across the state since Friday afternoon.
In Washington County, the county clerk’s office estimated on Thursday morning that 30-35 marriage licenses have been issued to same-sex couples thus far.
Some counties, most notably Utah County, refused to issue same-sex marriage licenses to same-sex couples pending the results of the appeal to the Tenth Circuit Court. Gradually, the counties that held out began to issue the licenses. The Utah County Clerk’s Office began to issue marriage licenses Thursday morning.
St. George News Editor-in-Chief Joyce Kuzmanic contributed to this report.
- 20131224 10th Circuit Order on Appeal
- 20131223 District Court Judge Shelby’s Order on Motion to Stay
- 20131220 Memorandum Decision Utah Amendment 3 marriage law
- SCOTUS Slip Opinion US v Windsor DOMA 12-307_g2bh
- SCOTUS Slip Opinion no standing re Prop 8 – 12-144_8ok0
- Tenth Circuit denies Utah’s appeal for stay on same-sex marriage ruling
- Same-sex marriages take place in Washington County
- County issues marriage licenses to same-sex couples, weddings had
- Federal judge strikes down Utah’s same-sex marriage ban
- Washington County issues marriage licenses for same-sex couples after federal ruling
- High court defers marriage question to states
- ON Kilter: The gay marriage debate is over
- On the EDge: Utah stance on marriage is hard to swallow
- Urquhart to reintroduce LGBT antidiscrimination bill
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