Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed a lawsuit challenging the amendment last March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah did not recognize their marriage as valid.
Call has a terminal illness, and Archer could be a "widow in limbo" if the court issues a stay before the case is resolved, Magleby said.
Hundreds of same-sex couples in Utah have married since the judge's Dec. 20 ruling.
Magleby contends the state failed to show Shelby and the 10th Circuit were "demonstrably wrong" in rejecting its earlier motions for a stay, noting Utah made the same arguments at each level.
Attorneys for the state have argued that allowing same-sex marriage does irreparable harm to Utah's sovereignty and its ability to enforce state law. They also say Utah would incur "administrative and financial costs” in determining “whether and how to unwind" same-sex marriages should it win the case.
Same-sex couples and their children may suffer “dignitary and financial losses from the invalidation of their marriages,” the state contends.
Magleby argues that the state can't concede that being stripped of one’s marital status causes profound, irreparable harm and urge the court to inflict that very injury on married same-sex couples.
"Neither (the state) nor the public have an interest in enforcing unconstitutional laws or relegating same-sex couples and their families to a perpetual state of financial, legal and social vulnerability," he wrote.
Bill Duncan, a lawyer and head of the Marriage Law Foundation, said arguments against the stay seem to be "doubling down" on Shelby's ruling that Utah's marriage law is unconstitutional.
The plaintiffs argue that "if we don't act on Judge Shelby's opinion then we're suffering irreparable injury. But, of course, that's exactly the point of contention — whether or not his opinion is correct," he said. "That didn't seem that convincing to me."
Duncan said there's good reason for Sotomayor to refer the request for a stay to the entire court. Both sides, he said, expect the Supreme Court will get the Utah case or another one soon.
"The court might as well slow things down and wait for the case to come up," Duncan said.
Contributing: Geoff Liesik
Email: email@example.com, Twitter: dennisromboy; DNewsPolitics
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