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Same-sex marriage advocates urge Justices to reject Utah’s request to stop the unions

Same-sex marriage advocates in Utah told the Supreme Court on Friday that the state has not shown there is a sufficient reason to stop the unions while it challenges a judge’s ruling that the state’s ban is unconstitutional.

Lower courts have considered Utah’s request four times and decided that the state would suffer no irreparable harm if the marriages continue during the legal fight, wrote a lawyer for three couples who challenged the ban.

Neither the state nor the public has an interest in “enforcing unconstitutional laws or relegating same-sex couples and their families to a perpetual state of financial, legal, and social vulnerability,” wrote lawyer James E. Magleby of Salt Lake City.

The brief was filed with Justice Sonia Sotomayor, who is designated to hear emergency requests from the U.S. Court of Appeals for the 10th Circuit, which covers Utah. She can decide the issue herself or refer it to the full court. There is no deadline for action.

Utah earlier this week asked the court to block U.S. District Judge Robert J. Shelby’s Dec. 20 ruling that Utah’s voter-approved 2004 constitutional amendment banning same-sex marriage violated federal guarantees of equal protection.

Since then, nearly 1,000 such marriages have taken place, and each one is an “affront” to democratic principles, Utah claimed.

Both sides in the legal fight agree that the issue — whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process — is one the Supreme Court sidestepped when it delivered landmark decisions on same-sex marriage in June.

The court delivered a pair of carefully weighted rulings.

In one, U.S. v. Windsor, it voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such marriages.

In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, banning same-sex marriage, was unconstitutional. The court ruled that the case was not properly presented to it and avoided a decision on whether state bans offend the U.S. Constitution.

The question is likely to come back to the Supreme Court eventually, both sides agreed, but the swiftness of change — and the venue of conservative Utah — has been a surprise. When the court heard arguments in the two cases in the spring, nine states plus the District allowed same-sex marriage.

Including Utah, the number now stands at 18. The highest state courts in New Jersey and New Mexico have since ruled that the marriages must be allowed.

The question of whether states may ban same-sex marriage is not before the court in Utah’s request for a stay; the case concerns only whether the marriages should be stopped while the case is further litigated.

The 10th Circuit has agreed to an expedited review of Shelby’s ruling, with briefs due later this month.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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