With a stay barring recognition due to expire at 8 a.m. Monday making the same-sex couples eligible for spousal benefits Utah asked for the emergency order on Wednesday. The state said it believes it will ultimately prevail in its fight to revive a ban on same-sex unions, which it says would nullify the marriages entered into during the window.
But the ACLU said that even if the same-sex marriage ban is revived, the state will be constitutionally barred from nullifying the marriages that took place between Dec. 20, 2013, and Jan. 6, 2014. It said that "couples that do legally marry are protected by the same fundamental rights and liberty interests as any other legally married couple."
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 the newer Evans v. Utah suit, in which say the state must recognize their Utah marriages.
U.S. District Judge Dale Kimball ruled in May in the Evans case 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. His decision did not go into effect immediately to give the state time to appeal.
Utah's emergency application was filed with U.S Supreme Court 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. If Sotomayor refuses to intervene, the state wrote, it will seek relief from the full U.S. Supreme Court.
The state had first gone to the 10th Circuit Court of Appeals. A panel of three judges, who heard the Kitchen v. Herbert lawsuit, subsequently denied the 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.
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.