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Court to allow Utah lengthier 'brief' in same-sex marriage appeal

Published: Thursday, Jan. 30 2014 1:00 p.m. MST

Plaintiffs, activists and equality supporters rally at the Utah State Capitol to show support for Judge Robert Shelby’s Dec. 20th ruling on Amendment 3 in Salt Lake City Friday, Jan. 10, 2014.

Jeffrey D. Allred, Deseret News

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SALT LAKE CITY — The 10th Circuit Court of Appeals will allow state attorneys defending Utah's same-sex marriage ban to file an opening argument that could be as long as 24,000 words.

The Denver-based court granted the state's motion Thursday seeking permission for its brief, due Feb. 3, to exceed the established limit by 10,000 words. The motion also gives some insight into how Utah intends to make its case.

"This appeal presents one of the most important and debated legal and policy questions of our time: the constitutionality of a state’s decision to define marriage as only the union of a man and a woman," wrote Gene Schaerr, special assistant Utah attorney general.

Schaerr argues that the marriage issue deserves and requires thoughtful and thorough development and analysis. He said the state must cite vast amounts of social science material to fully and fairly explain how traditional marriage serves Utah's interests.

In the motion, the state contends that there are “extraordinary and compelling circumstances” to exceed the word count, noting the 9th Circuit Court of Appeals allowed 31,000-word opening briefs in the California same-sex marriage case.

Schaerr said that applies in this case because of the "compelling nature of the marriage question in general, its extraordinary importance to people in Utah and throughout the country, and the critical need to fully discuss both the constitutional principles and social science studies explaining Utah’s position."

The state's motion also notes that Schaerr was hired as the state's lead counsel on Jan. 16 and that it took time for him to become familiar with the case.

"Only now, after diligently working to complete the brief over the past two weeks with outside counsel, did state defendants know whether they would need additional words or, if so, how many," according to the motion.

The 10th Circuit already allowed the state a seven-day extension to file the brief. The court has also scheduled oral arguments for April 10.

U.S. District Judge Robert J. Shelby struck down Utah's voter-approved definition of marriage on Dec. 20. About 1,300 same-sex marriage licenses were issued in Utah until the U.S. Supreme Court put a hold on Shelby's ruling Jan. 6. County clerks indicated that the majority of those who received licenses also got married.

In a related case, four same-sex couples sued the state in 3rd District Court after the governor's office declared Utah would not recognize gay marriages pending the appeal. On Wednesday, the state requested the case be moved to federal court, where it was assigned to U.S. District Judge Dale Kimball.

Email: romboy@deseretnews.com

Twitter: dennisromboy; DNewsPolitics

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