Utah’s lawyers are scheduled to go back today before the federal judge who struck down the state’s ban on gay marriage as they seek a halt to the weddings until their appeal is heard.
A hearing on the state’s request is scheduled before U.S. District Judge Robert J. Shelby at 9 a.m. in Salt Lake City, according to a posting on the court’s website. The U.S. court of appeals in Denver yesterday rejected an emergency request from Utah officials for a stay.
Seventeen other states and the District of Columbia have legalized gay marriage. New Mexico, the only state without a law specifically allowing or prohibiting gay marriage, was barred by its highest court on Dec. 19 from denying same-sex couples the right to marry.
“Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law,” Shelby wrote in his Dec. 20 opinion. “The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.”
The court’s decision constitutes “a fundamental shift away from society’s understanding of what marriage is,” Brian Tarbet, acting Utah attorney general, wrote in urging the judge to maintain the ban on same-sex marriages pending the appeal.
The ruling takes a public policy question away from the people of Utah and constitutes irreparable harm to the democratic process in the state, Tarbet wrote. The state must prove it would suffer irreparable harm as one of four conditions it’s required to meet to win a stay on the ruling.
The state hasn’t shown it would suffer in any meaningful way, Peggy Tomsic, a lawyer for the plaintiffs, wrote yesterday.
“Experiences in numerous other states illustrate that states can effectively manage changes to their marriage laws pending and following litigation,” she wrote.
In June, the U.S. Supreme Court struck down the 1996 Defense of Marriage Act that denied federal benefits to same-sex couples legally married in states that allowed it. The court also reinstated a federal judge’s order allowing gay marriages in California, ruling that opponents of gay marriage didn’t have legal standing to defend a voter-approved ban on same-sex weddings.
The case is Kitchen v. Herbert, 13-cv-00217, U.S. District Court, District of Utah (Salt Lake City).
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