Utah plans to take its gay-marriage fight to the Supreme Court … soon

December 27, 2013

Laurie Wood, left, and Kody Partridge embrace Dec. 20 after being told they are officially married by the Rev. Curtis L. Price in the lobby of the Salt Lake County offices. The two were plaintiffs in the case that saw Utah’s gay-marriage ban overturned. (Scott Sommerdorf/The Salt Lake Tribune via AP)

After multiple failed attempts at temporarily blocking gay marriages in the state over the past week, the Utah attorney general plans to elevate the fight to the U.S. Supreme Court … soon. In a Christmas Day statement, the attorney general’s office said it planned to appeal a lower court’s denial of its request Thursday, but in a follow-up yesterday the office said it needed more time.

“Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days,” the office said in a Thursday statement. “It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible.”

The state began pursuing a temporary halt to same-sex marriages in Utah after a judge ruled its ban unconstitutional a week ago Friday. Shortly after the ruling was issued, same-sex couples began receiving marriage licenses, leading the state to file four requests to temporarily block the marriages as it pursued an appeal.

Now, the state will take its case to Justice Sonia Sotomayor, who is tasked with overseeing the 10th Circuit Court of Appeals — the court that denied three of the state’s requests. After her, Utah could bring its case to the full court, too. The issue at hand, however, is the state’s request for a stay of the ruling that allowed the marriages to begin, and not its appeal of the ruling itself.

To secure a stay of the ruling, the state has to prove two things, says Clifford Rosky, a University of Utah professor of law and expert on lesbian, gay, bisexual and transgender legal issues. First, the state would have to prove that they are likely to win, Rosky, a gay-rights advocate, said this week. Second, they would have to prove that allowing the marriages to proceed would do “irreparable harm.” With hundreds of gay couples having already received licenses, that second argument is hard to make, he argues.

“If same-sex couples have already begun to marry, in the hundreds now, what would be the ‘irreparable harm’ of additional same-sex couples marrying?” he said early this week. “The cat’s out of the bag.”

Whatever happens, expect things to move quickly, Carl Tobias, a professor at the University of Richmond School of Law and a constitutional law expert, told the Salt-Lake Tribune. “The state has always thought time was of the essence, and the justices are likely to agree and move very quickly once the papers are in,” he said.

As of the end of the day Dec. 26, at least 905 same-sex couples had received marriage licenses in Utah since last Friday’s ruling, according to the paper. And that’s despite the holidays and some county clerks’ initial reluctance to issue the licenses. Salt Lake County alone issued 353 such licenses  Monday, dwarfing a previous record of 85.

Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
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