Same-sex marriages in Utah should be put on hold while a lower-court ruling that struck down a voter-approved ban on the unions is appealed, the state’s attorney general told the U.S. Supreme Court.
Utah has failed to stop hundreds of same-sex weddings since a Dec. 20 ruling by U.S. District Judge Robert J. Shelby that declared the ban unconstitutional. Both Shelby and the U.S. Court of Appeals in Denver have refused to block enforcement of the judge’s order during the appeal.
“This case involves not just a refusal by the federal government to accommodate a state’s definition of marriage, but an outright abrogation of such a definition by a single federal court wielding a federal injunction and acting under the banner of the federal constitution,” lawyers for the state said in their request to Supreme Court Associate Justice Sonia Sotomayor.
Seventeen other states and the District of Columbia have now 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.
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.
Utah Governor Gary Herbert, a Republican, last month named Sean D. Reyes to serve as the state’s attorney general through 2014, replacing John Swallow, who resigned in November. Reyes submitted yesterday’s request to the Supreme Court.
The absence of a court order keeping gay marriage on hold while Shelby’s ruling is on appeal has created a “rush to marry,” according to Utah’s filing.
There’s “a very strong likelihood” the Supreme Court will eventually review the underlying question in the case whether states may use the definition of marriage as between a man and a woman, the Utah attorney general’s office said.
If Shelby’s ruling is upheld by the appeals court and it goes before the Supreme Court, there is “likewise a strong prospect that a majority will vote to hold the district court’s injunction invalid and, in so doing, overturn that court’s due process and equal protection holdings,” according to Utah’s request.
John Mejia, legal director of the American Civil Liberties Union of Utah, which supported the challenge to Utah’s ban of same-sex marriage, didn’t respond to an e-mail seeking comment on the attorney general’s request to the Supreme Court.
Shelby wrote in his Dec. 20 opinion that “Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law.”
The judge, 43, was appointed in 2011 by President Barack Obama, a Democrat, and was confirmed in 2012.
“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,” Shelby concluded.
The lower-court case is Kitchen v. Herbert, 13-cv-00217, U.S. District Court, District of Utah (Salt Lake City).