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."
In a counter to the state's argument that same-sex marriage is a recent innovation that is not "deeply rooted in the nation's history and tradition," the attorneys respond: "When analyzing cases involving fundamental rights, this court has not held that the contours of a fundamental right can be limited based on who seeks to exercise it or on historical patterns of discrimination."
What the plaintiffs seek is not a new right, as the state argues, but rather an existing fundamental right, they said.
The attorneys also criticize the state's claim that Shelby's decision is likely to be reversed based on a "hodgepodge of articles that purportedly show that same-sex parents are inferior to opposite-sex parents."
That claim, the attorneys said, is false and does not resolve the constitutional issue presented in the case.
"To the extent benefits and protections of marriage encourage opposite-sex couples to marry before having children, those incentives existed long before Utah's discriminatory laws were enacted, and they would continue to exist if those laws were struck down," they said. "Excluding the children of same-sex couples from those benefits causes severe harm to those children, without providing any benefit to the children of opposite-sex parents."
It also is "remarkably similar" to justifications once made for penalizing "so-called 'illegitimate' children by depriving them of critical legal protections."
"The fact that same-sex couples do not engage in unplanned procreation does not provide a rational basis for excluding married same-sex couples from all of the other protections provided to married couples under Utah law," the attorneys said.
Unlike speculative harms articulated by the state, including the administrative and financial burden of potentially having to "unwind" marriages, the harm to same-sex couples and their children because of the marriage ban is undisputed, the attorneys said.
As the state itself acknowledged, it is unclear whether marriages would be invalidated if Shelby's decision were ultimately reversed a potential outcome Utah argues warrants a stay because of the harm it would inflict on same-sex couples who married.
But the state "cannot simultaneously concede that being stripped of one's marital status causes profound, irreparable harm and urge the court to inflict that very injury on the married respondents and other married same-sex couples," they said.
And an initial survey of state officials by Utah Gov. Gary Herbert's office found the impact of complying with Shelby's order will be minimal, they point out.
Most cases relied on by the state in its stay application are either off point, they said, or were decided decades before "the wave of unprecedented state statutes and constitutional amendments" barring marriage rights to same-sex couples.
The attorneys also note that while Shelby's ruling is the first post-Windsor decision to strike down a state marriage ban, same-sex marriage is currently being debated in more than 25 state and federal lawsuits in 15 states and suggest it may be premature for the high court to take up the issue before at least some appellate courts tackle it.