SALT LAKE CITY — A federal appeals court Thursday put a temporary hold on a judge's order requiring Utah to recognize same-sex marriages performed in the state starting next week.
Gov. Gary Herbert and Attorney General Sean Reyes notified the 10th Circuit Court of Appeals that it intends to challenge U.S. District Judge Dale Kimball's ruling and asked the court to put it on hold pending resolution of the appeal.
The Denver-based appellate court gave four couples who sued the state until next Thursday to file a motion opposing the state's request. The order essentially extends the 21-day hold — due to expire Monday — Kimball placed on his May 19 ruling. Lawyers will now argue whether the court should maintain the stay throughout the appeals process.
“We appreciate the circuit court granting the stay request and acknowledging the need for more time to allow all parties a chance to address such important issues,” Reyes said in a statement.
The state 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.
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 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 Shelby's decision that upended the state's voter-approved Amendment 3 defining marriage as between a man and a woman.
John Mejia, an ACLU of Utah attorney representing the couples, said waiting until two business days before the deadline "really smacks of a delay tactic."
"If they seek a stay on day 18, that argues against the idea that there's any emergency or that there's any irreparable harm," he said.
Mejia said he was disappointed that the state decided to appeal.
"We think to continue to refuse to recognize valid marriages is very harmful to the families of those married couples," he said. "For the state to continue this marriage limbo is ill-advised and unprecedented."
Kimball was "loud and clear" that couples in those marriages have vested rights, Mejia said.
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 has placed plaintiffs and their families in a state of legal limbo with respect to 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," Kimball wrote in his ruling.
"These legal uncertainties and lost rights cause harm each day that the marriage is not recognized."
In its motion, the state argues Kimball did not correctly apply Utah law to his decision. It contends the right for same-sex couples to marry resulted from U.S. District Judge Robert J. Shelby's "non-final" opinion striking down Utah's gay marriage ban that is now under appeal in the 10th Circuit and could be ruled on soon.
"The very fact that plaintiffs’ right to marry in Utah was created by a non-final order means plaintiffs’ rights in their marriages have not vested, and thus are not entitled to due process protection," according to the state.
Utah argues it would suffer irreparable harm if it were forced to recognize marriages prohibited by state law.
"Such recognition, even for a short time, would render this appeal, which presents novel and difficult questions of federal constitutional law, moot," according to the state.
After Shelby overturned Utah's marriage law on Dec. 20, the state appealed to the 10th Circuit Court and obtained a stay of the ruling from the U.S. Supreme Court. About 1,300 couples married during before the high court stepped in Jan. 6.
Reyes asserted that the Supreme Court stay means the law reverts back to the way it was before Shelby's ruling. Based on Reyes' advice, the governor's office directed state agencies on Jan. 8 to put recognition of same-sex marriages on hold pending the appeal.
About two weeks later, Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, JoNell Evans and Stacia Ireland, and Elenor Heyborne and Marina Gomberg sued the state to have their marriages recognized. All were married in Utah between Dec. 20 and Jan. 6.
Reyes said his office weighed all options, including the viability of recognizing only those marriages performed during that time, but it can't ignore that the Amendment 3 and marriage recognition cases are "inseparably intertwined."
“Those of us working on the case take no pleasure in prolonging the legal process, but to immediately recognize benefits or marriages performed during the 17-day period is premature pending the outcomes of these other decisions,” Reyes said in a statement.
“Although the state recognizes the deep burden placed on families who must continue to wait for a final decision regarding their rights and those of their children, any decision by the highest courts that results in undoing what the district court has granted could be more disruptive than awaiting certainty and finality."
Mejia said win or lose in the Amendment 3 case, the couples whose marriages were solemnized during the time it was legal in Utah have rights that need to be respected.
Gomberg said it's "uncomfortable irony that in part through our taxpayer dollars we are sort of funding our own delayed equality, which is less than awesome."
She said she's disappointed but not surprised that the state decided to appeal
"On a personal level it means that we're unable to make plans to have a baby and we would really like to be able to do that," Gomberg said.
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