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Utah asked the U.S. Supreme Court on Wednesday to issue an emergency order that would prevent the state from recognizing the marriages of thousands of gay and lesbian Utahns, because the state believes it will ultimately prevail in its fight to revive a ban on such unions.
If it does, the state wrote, Utah will do "everything possible" to enforce the law. That means effectively nullifying the more than 1,000 unions gay and lesbian Utahns entered into during a 17-day window when such weddings were legal.
"If Utah's laws are struck down, Utah will recognize [same-sex couples'] interim marriages," wrote the state's hired counsel Gene C. Schaerr. "If Utah's laws are upheld, Utah will do everything possible to comply with them."
Utah continues to defend its right to define marriage as a union between one man and one woman on two fronts in the historic Kitchen v. Herbert case that toppled the state's ban on same-sex unions in December, and in a newer Evans v. Utah suit, in which several gay and lesbian couples have challenged the state to recognize their Utah marriages.
Should married same-sex couples be allowed to apply for spousal benefits before the 10th Circuit has ruled on Utah's appeal in the Evans case, the state argued, the case itself is moot.
"The district court in this case erred in holding that [same-sex couples] are entitled to an injunction now that directs Utah to recognize [same-sex couples'] interim marriages regardless of this court's ultimate decision in Kitchen," Schaerr wrote. "Absent a final decision by an appellate court of last resort declaring Utah's marriage laws unconstitutional, the democratically produced decisions of Utah's citizens should not be overturned based on the discretion of a single federal district judge unchecked by subsequent appellate review."
It is for that reason, Schaerr wrote, the Supreme Court must issue a stay to protect the state's status quo.
If the high court declines to intervene, more than 1,000 same-sex marriages performed in Utah during a brief window when such unions were legal will be eligible for spousal benefits at 8 a.m. Monday.
Time, the state wrote, is of the essence.
The U.S. Supreme Court "will soon have the final, dispositive word on the important issue of who gets to decide how to define marriage: the people of a state participating in the democratic process, or the federal courts," Schaerr wrote. "If allowed to stand, the district court's decision in this case will severely limit [the Supreme Court's] ability to grant complete relief if it reverses the Kitchen decision. ... This court will only be able to ensure that the democratically expressed will of Utah's people is respected in the future; it will not be able to ensure that the people's will is respected as to the interim marriages that occurred before this court stepped in and stayed the Kitchen injunction."
The emergency application filed with Justice Sonia Sotomayor, who oversees the federal court circuit of which Utah is a part and who, in January, halted the issuance of marriage licenses to same-sex couples in Utah after 17 days of marriages.
In its brief Wednesday, Utah expressed confidence about its chance of reviving a voter-approved ban on same-sex marriage that has been ruled unconstitutional by two federal courts.
The most recent court to declare Utah's embattled Amendment 3 a violation of the federal Constitution was the 10th Circuit Court of Appeals.
A panel of three judges, who heard, and ultimately ruled, in Utah's historic Kitchen v. Herbert lawsuit which first toppled the state's ban on same-sex marriages on Dec. 20, 2013 subsequently denied Utah's request to indefinitely stop married gay and lesbian couples from applying for benefits until all litigation was settled.
Judges Carlos F. Lucero and Jerome A. Holmes authored the succinct denial without offering an analysis of their reasons.
But, in denying Utah's request, the judges declared the state failed to prove it would suffer irreparable harm in recognizing the marriages and didn't demonstrate that the state is likely to prevail in its appeal.
In Utah's brief to the U.S. Supreme Court, Schaerr wrote that there was "a certainty" of harm being done to the state in denying it the right to enforce its own laws and undergo the judicial process of appeal.
"Absent a stay," Schaerr wrote, "the state and its people will also suffer severe harm to their sovereign dignity."
Last week, one appeals judge, Judge Paul J. Kelly, wrote a dissent, backing the state's right to judicial resolution and arguing that allowing gay and lesbian couples' marriages to be imbued with rights would undermine the appeals process.
"In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force," Kelly wrote. "It is disingenuous to contend that the state will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration."
Utah also asserted that because marriage is not a right overtly named in the U.S. Constitution, and same-sex marriage was only found to be covered under the Fourteenth Amendment by U.S. District Judge Robert J. Shelby less than seven months ago, the plaintiffs cannot argue that they are being denied their right to marriage because Shelby's ruling is still in contention.
If Sotomayor refuses to intervene, the state wrote, it will seek relief from the full U.S. Supreme Court.
The American Civil Liberties Union, which represents the four plaintiff couples in the Evans case, has said they are also prepared to file a brief to the Supreme Court, urging the nine justices to allow the 10th Circuit's temporary hold to expire and thousands of couples to begin applying for state benefits.