SALT LAKE CITY — Four same-sex couples who sued the state to have their marriages recognized asked a federal appeals court Friday to lift the temporary stay it issued the day before and immediately reject Utah's request for a permanent stay.
Attorney Erik Strindberg argues that U.S. District Judge Dale Kimball went to great lengths to allow the state 21 days to decide whether to appeal his May 19 ruling that requires Utah to recognize the gay and lesbian marriages performed during the brief time it was legal.
But the state filed its notice of appeal and request for a stay in the 10th Circuit Court of Appeals just two business days before Kimball's order would take effect.
"This court should not reward defendants’ decision to sit on their hands for over two weeks and then seek a last-minute extension of the stay based on time constraints that their own delay created," Strindberg wrote in a 20-page motion.
On Thursday, the 10th Circuit put a temporary hold on Kimball's ruling and gave the couples until June 12 to file arguments against a permanent stay. But Strindberg asked the court to make a decision immediately.
Utah contends its appeal would be moot if Kimball's order to extend marriage benefits to about 1,300 gay and lesbian couples were to stand pending resolution of the appeal.
Marriage benefits granted to same-sex couples would be "a lot more difficult to undo" if the 10th Circuit were to ultimately rule in the state's favor, said Joni Jones, litigation director in the Utah Attorney General's Office.
Jones acknowledged Thursday that Utah risked not getting a stay by waiting until this week to file its motion.
"But we felt like it was an important enough issue that we looked long and hard at whether we would appeal," she said. "That's why we didn't file the day after the decision came because we wanted to consider whether or not that was the right choice."
The attorney general's office, Jones said, decided it would be inconsistent to not appeal Kimball's ruling after appealing Judge Robert J. Shelby's decision that overturned the state's voter-approved Amendment 3 defining marriage as between a man and a woman.
JoNell Evans and Stacia Ireland, Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, and Elenor Heyborne and Marina Gomberg were married during the 17 days that same-sex marriage was legal in Utah. They sued when the governor's office issued a directive against recognizing the marriages as valid.
In the motion, the couples argue that a stay would prolong the legal limbo Utah placed them in.
"There is no such thing as an 'interim marriage,'" Strindberg wrote.
Whether or not the 14th Amendment requires states to allow same-sex couples to marry, those who have legally married are protected by the same fundamental rights, he said.
The state contends that because the marriages resulted from a "non-final" decision in the Amendment 3 case, the couples' don't have vested rights and aren't entitled to due process protection. It wants the court to stay all rulings until questions about recognition of marriage and constitutionality of Utah law are resolved for good.
If the courts uphold Shelby's ruling, the couples' marriage rights could not be taken away. But if it's reversed, the marriages may be void under Utah law, according to the state.
In his decision, Kimball wrote that under Utah law, legal marriages can't be retroactively invalidated and that the state failed to show it would be harmed if the unions were recognized. Conversely, he said, not recognizing same-sex married couples disrupts their lives.
The state put them and their families in legal limbo regarding adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage, he said.
"These legal uncertainties and lost rights cause harm each day that the marriage is not recognized," Kimball wrote.
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