Shelby ruled that Amendment 3 to Utah's constitution, approved by 66 percent of voters in 2004, and two related state laws violated due process and equal protection rights of same-sex couples by denying them the right to civil marriage.
Monte N. Stewart, a Boise attorney and founder of the Marriage Law Foundation, joined the Utah Attorney General's Office in making the application the state's fifth attempt to block same-sex marriage in Utah while it appeals Shelby's ruling. It also posted a notice Tuesday seeking an outside firm's help.
Attorney James E. Magleby, who with Peggy A. Tomsic represents the three couples that challenged Utah's ban, criticized the state's continued push for a stay, particularly given the 10th Circuit Court of Appeals expedited schedule to hear the case.
"We are disappointed that the state of Utah will spend millions of dollars in taxpayers' money to attempt to reinstate laws which deny due process and equal protection to all of Utah's citizens," Magleby said in a statement. "It doesn't have to be this way."
Magleby held out the example of New Jersey Gov. Chris Christie, who this fall declined to appeal a similiar ruling and instead "put a divisive issue in the past."
Associate Justice Sonia Sotomayor, who is assigned oversight of cases arising from the 10th Circuit, has given attorneys for the three same-sex couples until 10 a.m. on Friday to file a response to the state's stay request.
Sotomayor may review the application on her own or refer it to the full court. If Sotomayor decides it on her own and declines to grant a stay, the state could then seek an opinion from another justice; by tradition that justice would refer it to the whole court for consideration.
In reviewing a stay request, the court considers four general criteria: likelihood that four justices will find the case meritorious enough to grant certiorari on appeal; whether there is a "fair prospect" a majority would reverse the lower court's decision; irreparable harm caused if a stay is denied; and, in close calls, relative harms to the applicant, respondent and public interests.
Whatever the outcome, it is possible that one or more justices may choose to memorialize his or her views in the decision particularly if there is an ideological divide on the court that sheds light on the court's early view of the case, said Stephen Wermiel, who teaches constitutional law at American University in Washington, D.C.
"The movement toward legalization of same-sex marriage is rapid around the country and the unfairness of denying same-sex marriage received a pretty compelling argument in the Supreme Court's defense of marriage [hearing] last June," Wermiel said. "That part of it makes a pretty good argument for denying the state."
On the other hand, "the traditional guidelines the court follows make a good argument for granting a stay," Wermiel said.
The application recasts some of the state's arguments in previously unsuccessful attempts to get a stay.
It says refusals by Shelby and the 10th Circuit to grant a stay created a "rush to marry" at county clerk's offices in Utah. Nearly 1,000 couples throughout the state wed the week after the ruling.
Those decisions were an "affront" to the court's "unique role as final arbiter of the profoundly important constitutional question that it so carefully preserved in Windsor," the state said, and could lead to an "enormous disruption" to the state and its citizens of potentially having to later "unwind" those marriages if the state prevails.
"Constitutional rights do not spring into existence by mass political activity triggered by the decision of a single district court judge," the state said.
The state leans heavily on the court's decision in Windsor, which struck down a section of the Defense of Marriage Act that prohibited extension of federal benefits to same-sex couples even in states where such unions are legal. That affirmed the right of states to regulate marriage, Utah argues.
There is "at least a good prospect that a majority of this court will ultimately hold the [Utah] district court's far more intrusive order and injunction invalid, and in so doing vindicate the prerogative of Utah and its citizenry to retain the traditional definition of marriage if they so choose," the state said.
Unlike the Hollingsworth v Perry case, the California Proposition 8 case the court heard last March but later declined to rule on because of standing issues, there are no jurisdictional defects in Utah's case, the state said.
"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.
"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."
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)
Source: ProCon.org Help Wanted
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