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Same-sex couples oppose state's request for more time to appeal

Published: Saturday, Jan. 18 2014 11:43 p.m. MST

Derek Kitchen, left, and Moudi Sbeity, one of the gay couples that challenged Utah's constitutional definition of marriage as about 1,500 people gather to show support of marriage equality at Washington Square, just outside of the Salt Lake City and County Building Monday, Dec. 23, 2013, in Salt Lake City.  
 (Tom Smart, Deseret News) Derek Kitchen, left, and Moudi Sbeity, one of the gay couples that challenged Utah's constitutional definition of marriage as about 1,500 people gather to show support of marriage equality at Washington Square, just outside of the Salt Lake City and County Building Monday, Dec. 23, 2013, in Salt Lake City. (Tom Smart, Deseret News)

SALT LAKE CITY — The gay and lesbian couples whose lawsuit led to Utah's voter-approved ban on same-sex marriage being overturned are asking the 10th Circuit Court of Appeals to deny the state's motion for more time to file an appeal.

"Each day that this appeal continues, the three sets of plaintiff couples are experiencing immediate and irreparable injury from being denied the right to marry or from having their marriages recognized by the state of Utah," the opposition motion filed Saturday states. "There are thousands of other same-sex couples in Utah in similar situations".

Last month, U.S. District Judge Robert Shelby struck down Utah's Amendment 3, which defines marriage as being a union between a man and a woman. The state immediately filed a notice of appeal, and the 10th Circuit Court set an "expedited" schedule for the case, which requires Utah to file its appeal by Jan. 27.

Kody Partridge and her partner Laurie Wood talk to the media following their marriage. (Scott G Winterton, Deseret News) Kody Partridge and her partner Laurie Wood talk to the media following their marriage. (Scott G Winterton, Deseret News)

"Requests for extension of time are very strongly discouraged and will be considered only under extraordinary circumstances," 10th Circuit Court Clerk Elisabeth Shumaker wrote at the time.

Utah asked for a 10-day extension Friday. The state pointed to the recent hiring of three new attorneys, as well as its desire to have time to complete a "fulsome, detailed and quality" brief on the constitutional questions of the case.

In a motion opposing the state's request, attorneys for gay couple Derek Kitchen and Moudi Sbeity, and lesbian couples Laurie Wood and Kody Partridge, and Karen Archer and Kate Call asked the appeals court to deny the request.

"There are no extraordinary circumstances here," the motion states. "The scheduling preferences of the state defendants pale in comparison to the real and continuing harms that plaintiffs and other same-sex couples and families are experiencing in Utah while this appeal continues."

Utah Attorney General Sean Reyes announced Thursday that constitutional and appellate law expert Gene C. Schaerr would lead Utah's appeal, along with former Michigan Solicitor General John Bursch and Boise-based attorney Monte Stewart.

The opposition motion states that more than 1,300 same-sex couples obtained marriage licenses in the wake of Shelby's ruling. Both Shelby and the 10th Circuit denied Utah's request for a stay on the ruling pending an appeal before a stay was ultimately implemented by the U.S. Supreme Court.

Meantime, the attorneys for the same-sex couples argue in their motion that the couples have been left in limbo after Utah officials said they would not recognize the marriages until the appeal is complete.

U.S. Attorney General Eric Holder said the federal government would recognize the marriages, though, and Thursday the Utah State Tax Commission said it would allow same-sex couples who married before Dec. 31 to file a state tax return as "married."

Email: emorgan@deseretnews.com, Twitter: DNewsCrimeTeam

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