The Washington Post

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.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!
Show Comments
The Republicans debated Saturday night. The New Hampshire primary is Feb. 9. Get caught up on the race.
Highlights from Saturday's GOP debate
Except for an eminent domain attack from Bush, Trump largely avoided strikes from other candidates.

Christie went after Rubio for never having been a chief executive and for relying on talking points.

Carson tried to answer a question on Obamacare by lamenting that he hadn't been asked an earlier question about North Korea.
The GOP debate in 3 minutes
Play Video
We have all donors in the audience. And the reason they're booing me? I don't want their money!
Donald Trump, after the debate crowd at St. Anselm's College booed him for telling Jeb Bush to be "quiet."
Play Video
New Hampshire polling averages
Donald Trump holds a commanding lead in the next state to vote, but Marco Rubio has recently seen a jump in his support, according to polls.
New Hampshire polling averages
A victory in New Hampshire revitalized Hillary Clinton's demoralized campaign in 2008. But this time, she's trailing Bernie Sanders, from neighboring Vermont. She's planning to head Sunday to Flint, Mich., where a cost-saving decision led to poisonous levels of lead in the water of the poor, heavily black, rust-belt city. 
55% 38%
Upcoming debates
Feb. 11: Democratic debate

on PBS, in Wisconsin

Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

Campaign 2016
State of the race

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.