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If a federal appeals court denies Utah's request to stop married same-sex couples from applying for spousal benefits until the court has a chance to rule on the case, the state said Monday, it will take it up with the U.S. Supreme Court.
As of Monday, 10th Circuit Court of Appeals had not yet ruled whether it would stay a federal judge's decision that ordered the state to begin imbuing the marriages of gay and lesbian Utahans with all the benefits and rights of their opposite-sex counterparts.
If the appeals court declines to do so, the Utah Attorney General's Office wrote, it would cause confusion and uncertainty in the state.
"The balance of the harms tips decidedly in favor of [Utah] because if the stay is not granted, the right to appeal the district court's ruling is effectively lost," the attorney general's office wrote. "Plaintiffs will incur additional delay in having their marriages recognized if it is ultimately determined that Utah's laws are unconstitutional. But [...] the harm is offset by the certainty that results in a final, complete review of the legal issues, which benefits all parties and all people of Utah."
The state has argued that if married same-sex couples were allowed to begin applying for state benefits which the right to property, legal protection, inheritance, and the ability to adopt, among others it would render moot any decision the 10th Circuit court makes.
It would also impact the autonomy of the Utah Supreme Court, the state wrote, which has been asked to determine whether state court judges who granted adoptions to married same-sex couples were in-line with the law or overreaching their authority.
"It is a threat to proper appellate review of a novel, important legal issue affecting the lives of thousands of Utahns," according to the AG's brief. "To ensure Utah's right to review is preserved, a stay is necessary."
But should a panel of appeals judges overturn the lower-court decision that ordered Utah to honor such unions, the state would be able to revoke rights and nullify adoptions.
The three plaintiff couples in this case, Evans v. Utah, have asked the court to rule immediately on whether it will issue a stay in the case so that if they decline to do so same-sex couples can immediately begin to apply for benefits.
U.S. District Judge Dale A. Kimball, who ordered Utah to recognize the marriages last month, issued a three-week stopgap to give the state an opportunity to appeal.
That deadline would have expired Monday.
More than 1,000 gay and lesbian couples were married in Utah during a 17-day period when such unions were legal, following U.S. District Judge Robert J. Shelby's historic Dec. 20 decision that declared Utah's ban on same-sex marriages unconstitutional.
In the immediate aftermath of Shebly's decision and the subsequent weddings, Utah agencies looked to Gov. Gary Herbert for guidance on how to handle the new marriages.
Herbert, at the time, said the state could not recognize the unions, given the fact that the U.S. Supreme Court halted Shelby's decision until the state's appeal could be resolved. Utah has said the Supreme Court stay reverted the state to the "status quo" of Amendment 3, which barred Utah from recognizing same-sex marriages.
But the plaintiffs have argued that the couples who were married when same-sex weddings were being granted by county clerk offices throughout the state should not be impacted by the original same-sex marriage lawsuit that challenges Utah's voter-approved ban.
Kimball, in his ruling, noted the separateness of the two cases.
"This case is not about whether the due process clause should allow for same-sex marriage in Utah or whether the Kitchen decision from the District was correct," Kimball wrote. "This case deals only with whether Utah's marriage bans preclude the State of Utah from recognizing the same-sex marriages that already occurred in Utah between December 20, 2013, and January 6, 2014."
The American Civil Liberties Union, which represents the plaintiffs in the Evans case, has also accused the state of dallying, forcing the courts to further delay allowing same-sex couples from applying for benefits.
"This court should not reward [Utah's] decision to sit on their hands for over two weeks and then seek a last-minute extension of the stay based on time constraints that their own delay created," wrote ACLU attorney Leah Farrell in a brief filed with the 10th Circuit. "Granting a stay will only prolong the legal limbo that [the state] has created."
Utah has rejected this accusation.
"Defendants had no predetermined plan, but instead, diligently researched and carefully analyzed the legal and practical viability of all available options, including implementation or appeal," Utah wrote in its brief Monday.
The 10th Circuit Court of Appeals could rule at any time regarding the stay. Until then, its temporary halt on same-sex marriage benefits will remain in effect.
Also pending in the appeals court is the original challenge to the state's same-sex marriage bans. The appeals court, which seemed split on the issue after hearing arguments in that case in April, put the case on an expedited calendar, but has not said when it might rule.