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Utah likely to pursue appeal in marriage recognition case without stay

Published: Tuesday, June 30 2015 8:24 p.m. MDT

Flags are carried during Utah Pride Festival Parade in Salt Lake City  Sunday, June 8, 2014. Utah again argued in a court filing Monday that its appeal of a federal judge's order requiring recognition of same-sex marriages performed in the state would be moot without a stay. (Jeffrey D. Allred, Deseret News) Flags are carried during Utah Pride Festival Parade in Salt Lake City Sunday, June 8, 2014. Utah again argued in a court filing Monday that its appeal of a federal judge's order requiring recognition of same-sex marriages performed in the state would be moot without a stay. (Jeffrey D. Allred, Deseret News)

SALT LAKE CITY — Utah again argued in a court filing Monday that its appeal of a federal judge's order requiring recognition of same-sex marriages performed in the state would be moot without a stay.

"It is a threat to proper appellate review of a novel, important legal issue affecting the lives of thousands of Utahns," wrote Parker Douglas, the Utah Attorney General's Office chief of staff. "To ensure Utah’s right to review is preserved, a stay is essential."

But attorney general's office spokeswoman Missy Larsen said the state would "likely" pursue the appeal even if the court denies the stay. Larsen also said it would petition the U.S. Supreme Court for a stay if that happens.

The new filing in the 10th Circuit Court of Appeals comes as a reply to lawyers for four married gay and lesbian couples who want the court to let U.S. District Judge Dale Kimball's ruling stand.

The order would have taken effect Tuesday had the court not entered a temporary stay last week. The couple asked the court to immediately lift the temporary hold and deny a permanent stay pending resolution of the state's appeal.

Kimball ruled last month that the state must extend benefits to about 1,300 couples who married during the brief time it was legal after Judge Robert J. Shelby struck down Utah's ban on gay marriage in December.

The state also contends that without a stay, the Utah Supreme Court would be hard-pressed to weigh in on whether marriages should be recognized. Attorneys for the state and the couples asked the state's high court to intervene in the case. It has yet to do so.

"Taking the issue from the Utah Supreme Court would deprive this court of guidance on a state law matter that would guide and bind this court with respect to Utah law," Parker argued to the 10th Circuit.

The couples' attorney, Erik Strindberg, argues that Kimball's ruling means the marriage recognition question is a matter of federal and not state law.

"Whether or not the Utah Supreme Court would hold that Utah law authorizes defendants to strip recognition from legally married same-sex couples, the defendants must still recognize those marriages based on their obligations under the 14th Amendment," he wrote.

The state says allowing Kimball's order to stand would put Utah at odds with its voter-approved Amendment 3, which prohibits same-sex marriage and recognition of those marriages. The couples in the case say the marriages were legal when they were performed and should be valid.

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, Kimball said.

Utah now has two separate but related same-sex marriage cases before the 10th Circuit Court of Appeals: the one that started the stream of litigation, Kitchen v. Herbert, and the one that case spawned, Evans v. Utah.

Kitchen v. Herbert

Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's law defining marriage as between a man and a woman in a federal lawsuit.

Shelby overturned the ban on same-sex marriage last December. The state appealed to the 10th Circuit Court of Appeals, and the U.S. Supreme Court put a hold on his ruling but not before about 1,300 gay and lesbian couples married in Utah.

A three-judge panel is expected to rule in the case any day now.

Evans v. Utah

JoNell Evans and Stacia Ireland, Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, and Elenor Heyborne and Marina Gomberg married between Dec. 20 and Jan. 6. They filed a federal lawsuit after the state put recognition of marriages performed as a result of the Shelby decision on hold.

Kimball ordered Utah to recognize the marriages and grant benefits to about 1,300 couples. The state filed a notice of appeal in the 10th Circuit Court of Appeals and requested stay of the order until the case is resolved.

The court has not decided whether to issue a stay.

Email: romboy@deseretnews.com Twitter: dennisromboy

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