Alabama, 9 States Join Utah Bid to Save Gay-Marriage Ban

Alabama, Alaska, Arizona, Colorado, Indiana and five other states said they support Utah’s bid to reverse a lower-court ruling that overturned its ban on same-sex marriages as momentum increases to send the issue for another review by the U.S. Supreme Court.

The 10 states jointly filed legal arguments supporting Utah’s position today in the U.S. Court of Appeals in Denver. The filing was signed by attorneys general for the states, all of whom are Republicans, including those for Idaho, Montana, Nebraska, Oklahoma and South Carolina.

The states supporting Utah “have an interest in protecting state power to adhere to the traditional definition of marriage,” according to the filing.

Gay marriage is legal in 17 U.S. states and the District of Columbia. The U.S. Supreme Court decided in June to overturn part of the federal Defense of Marriage Act and leave standing an order ending California’s ban on same-sex marriage. The court didn’t say whether similar state laws should also be struck down, leaving lower courts to grapple with that issue. States now face a wave of lawsuits in which advocates seek to expand recognition of marriage rights for gay couples, possibly setting up another showdown at the Supreme Court.

Future Generations

Utah last week argued in a filing with the Denver-based appeals court that it’s obligated to defend future generations of children whose well-being is threatened by redefining marriage from the traditional heterosexual model. Utah Governor Gary Herbert is seeking to overturn a Salt Lake City federal judge’s Dec. 20 ruling that struck down the state’s voter-approved ban.

Utah Attorney General Sean Reyes, a Republican, said last month that marital benefits won’t be granted to same-sex couples married after the state’s ban was found unconstitutional by U.S. District Judge Robert Shelby if they didn’t seek them in the 2 1/2 weeks before the U.S. Supreme Court put that order on hold. The Supreme Court halted gay weddings in Utah on Jan. 6 after more than 1,000 marriages had been conducted. The policy doesn’t affect benefits obtained before the high court ruled.

Utah sought Supreme Court intervention after Shelby, an appointee of Democratic President Barack Obama, and the Denver-based appeals court let the marriages go forward. The Supreme Court didn’t rule on the merits of the case.

“There’s nothing in this brief that hasn’t already been rejected by court after court after court,” Josh Block, a lawyer at the American Civil Liberties Union, said in e-mail about today’s filing by the 10 states. “I think they’re speaking for a small subset of states and I think the arguments made here are going to look pretty embarrassing a couple of years from now.”

The appeals court directed opponents of Utah’s ban to file written arguments by Feb. 25 and scheduled oral arguments for April 10.

The appeals case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the Tenth Circuit (Denver). The lower-court case is Kitchen v. Herbert, 13-cv-00217, U.S. District Court, District of Utah (Salt Lake City).

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