Utah’s appeal to Supreme Court delayed

SALT LAKE CITY – The Utah Attorney’s General’s Office announced Tuesday it would appeal to the U.S. Supreme Court  for an emergency stay on the lower court orders that have opened the door to same-sex marriages in Utah. The announcement came Tuesday following a denial by the U.S. Tenth Circuit Court of Appeals. However, the filing of the state’s appeal is being delayed.

“The Attorney General’s Office is preparing an application to the United States Supreme Court requesting a stay of the district court’s order,” the Utah Attorney General’s Office said in a statement Thursday. “Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days. It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible.”

Justice Sonia Sotomayor is assigned to the Tenth Circuit Court and will be the one who will receive Utah’s appeal for a stay. She can rule on the appeal herself or forward the appeal to the Supreme Court proper.

In June, Sotomayor joined in the majority opinion of the Supreme Court when it held that the Defense of Marriage Act, a federal version of Utah’s Amendment 3 currently being litigated, violated basic due process and equal protection principles applicable to the federal government. The Supreme Court held that DOMA injured the very class that a state law sought to protect; in that case, it was New York state law allowing same-sex marriage. The Court found that it would be untenable for a same-sex couple to live as married under state law but unmarried under federal law. It therefore deferred authority for defining and regulating marriage to the states.

However, that opinion may suggest what can be expected from Sotomayor in the days to come. While the Supreme Court deferred to the states, it yet observed the difficulty of a marriage law that includes some while excluding others. It said: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages ….” In protecting one class, marriage between a man and a woman, the Court saw the statute injuring another. That opinion in full is included in resources at the end of this report.

Should Sotomayor rule against Utah, the state can still make a direct appeal to the Supreme Court as a whole.

A stay would halt same-sex marriage statewide, which began Friday after federal district Judge Robert Shelby struck down Utah’s voter-approved same-sex marriage ban as unconstitutional. Over 700 same-sex marriages are estimated to have been conducted across the state since Friday afternoon.

In Washington County, the county clerk’s office estimated on Thursday morning that 30-35 marriage licenses have been issued to same-sex couples thus far.

Some counties, most notably Utah County, refused to issue same-sex marriage licenses to same-sex couples pending the results of the appeal to the Tenth Circuit Court. Gradually, the counties that held out began to issue the licenses. The Utah County Clerk’s Office began to issue marriage licenses Thursday morning.

St. George News Editor-in-Chief Joyce Kuzmanic contributed to this report.


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Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.


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  • Joe December 26, 2013 at 3:20 pm

    How is a same-sex marriage harmful to opposite-sex marriages? I think those people who’ve been married and divorced multiple times are harmful to the sanctity of marriage. The people who get married just to have sex and then get divorced are harmful to the sanctity of marriage. The church that once supported polygamy where old men married child brides and where the church assigned women to men, well, that is certainly harmful. I think the church which petitions politicians to write hateful propositions that lead people to stressful lives are harmful. Ever see the movie 8: The Mormon Proposition? You should and then think of all the families torn apart when people were ostracized by their families because the church viewed them as lesser beings. That is harmful.

  • Roger December 26, 2013 at 3:21 pm

    So if the Supreme Court placed the decision of same sex marriages back on the states, Why did a Federal Judge have authority to rule on this issue? If the states had already made a decision and made it a part of the state constitution then Federal Judge Shelby had absolutely no business even getting involved in this situation. If Justice Sotomayor holds to her previous decision, a reversal of Judge Shelby’s involvement should be happening soon.

    • Hunter December 27, 2013 at 4:41 pm

      I think you’re confused. The SCOTUS has not “placed the issue back on the states.” They ruled in Windsor on an aspect of federal law around same sex marriages, and in the Prop 8 case, they “punted,” saying the defendants had no standing; therefore the federal judge’s ruling on the matter stood. Sotomayor won’t be reversing any previous decisions if she fails to grant the stay. Keep in mind, the bar is high, and overruling the 10th Circuit’s decision not to grant a stay will mean she has a compelling reason to believe the circuit court made an error.

    • wayne December 28, 2013 at 10:02 am

      The state has the right to regulate marriage under the 10th amendment, PROVIDED, HOWEVER, that such “regulations” do not violate the Equal Protection or Due Process Clauses of the US Constitution. Under the Pre-emption Clause, anytime there is a conflict between a state law or state constitution and a US law or the US Constitution, the Federal Government prevails.

  • Combat Vet and Democrat December 27, 2013 at 6:15 pm

    The Constitution is the law of the land. Sherman settled the whole “states rights” question in Georgia and South Carolina long ago.. I have a real problem with the state of Utah wasting my tax money on this issue.

    • Hunter December 28, 2013 at 11:01 am

      Agreed. A letter in the Trib this week tried to assert that we are citizens of the US and citizens of Utah. Wrong. We are citizens of only one nation…The United States of America. We are RESIDENTS of Utah. Our citizenship follows us regardless of where we live or travel. But our residency is fluid depending on where we live.

  • wayne December 28, 2013 at 9:55 am

    One would think that Utah is being besieged by other states with similar constitution provisions NOT to appeal, and to let the sleeping dog lie. There is a substantial risk that this case, presented so poorly by the state before the federal district court, could be Scalia’s “other shoe”, and wipe out every such bigoted similar provision.

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