Attorneys for same-sex couples file argument against stay in Supreme Court

Published: Friday, Jan. 3 2014 10:30 a.m. MST

Diana Smith fills out a marriage license on the back of Karen Brinkerhoff outside the county clerks office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013.

Matt Gade, Deseret News

SALT LAKE CITY — Attorneys fighting Utah's attempt to halt same-sex marriages in the state say it would do irreparable harm to married gay couples and their children.

"Forcing same-sex couples and their families to wait and hope for the best during the pendency of this appeal imposes an intolerable and dehumanizing burden that no family should have to endure," a memorandum filed Friday in the U.S. Supreme Court states.

That is among the arguments attorney James Magleby makes in a 40-page brief opposing the state's application to stay U.S. District Judge Robert J. Shelby's ruling last month that struck down Utah's voter-approved law prohibiting gay and lesbian couples to marry. The state wants to stop same-sex marriages pending the outcome of its appeal of Shelby's ruling in the 10th Circuit Court of Appeals.

Magleby contends cases across the country show that the inability to marry, or have an existing marriage recognized by the state, subjects gay and lesbian couples not only to "catastrophic and permanent harm, but also to the intolerable threat of such harm."

Lawyers for the state filed an emergency application for a stay to Justice Sonia Sotomayor on Tuesday, saying same-sex marriages being performed in Utah are an "affront" to the will of the state and its residents.

Sotomayor is the justice who oversees the 10th Circuit. It's unknown how soon she will make a decision or whether she'll decide to refer the matter to the full court.

Considered one of the more liberal justices, Sotomayor had not ruled on civil union or same-sex marriage cases before being appointed to the high court in 2009. She joined the 5-4 majority in striking down part of the Defense of Marriage Act and ruling against the proponents of California's Proposition 8 last year.

Michael Zimmerman, a former Utah Supreme Court chief justice, called the state's request a "Hail Mary" to reverse the 10th Circuit denial of a stay in a case the appeals court has already decided to hear on an accelerated schedule. The state wants the Supreme Court to recognize it will eventually rule on same-sex marriage so it should stop gay marriages in Utah until then, he said.

"They're trying to make an end run around the court of appeals," he said, adding the state is trying to show its case is extraordinary. But when gay marriage is happening in more than a dozen states, he said, it doesn't look so extraordinary.

Zimmerman said he expects Sotomayor to refer the motion to the full court, and that the court will act quickly.

Utah's application for a stay notes that "numerous" same-sex marriages are happening every day in the state.

"And each one is an affront not only to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels, but also to this court's unique role as final arbiter for the profoundly important constitutional question it so carefully preserved in Windsor," wrote Monte Stewart, a Boise-based marriage law attorney retained by the state.

In U.S. v. Windsor, the high court overturned part of DOMA, but the state contends that a majority of the justices maintained that states have the power to define marriage.

"By contrast, this case involves not just a refusal by the federal government to accommodate a state's definition of marriage, but an outright abrogation of such a definition — by a single federal court wielding a federal injunction and acting under the banner of the federal Constitution," Stewart wrote.

Shelby struck down Utah's Amendment 3 defining marriage as between one man and one woman, saying it violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

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: romboy@deseretnews.com, Twitter: dennisromboy; DNewsPolitics

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