I think that signals that the state is going to make a very strong, full-throated argument in favor of the marriage laws. I think they're going to say the people of the state were acting, contrary to what Judge Shelby suggested, entirely rationally in wanting to preserve something that has been good for society. —Bill Duncan, Marriage Law Foundation
SALT LAKE CITY — Arguing that same-sex marriages being performed in Utah are an "affront" to the will of the state and its residents, the Utah Attorney General's Office asked the U.S. Supreme Court on Tuesday to stop them pending its appeal of a controversial ruling.
The 25-page application for a stay is directed to Justice Sonia Sotomayor, who oversees the 10th Circuit Court of Appeals. The 10th Circuit rejected the state's three earlier requests to delay U.S. District Judge Robert Shelby's Dec. 20 decision allowing gay and lesbian couples to marry.
The application notes that "numerous" same-sex marriages are happening every day in Utah.
"And each one is an affront not only to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels, but also to this court's unique role as final arbiter for the profoundly important constitutional question it so carefully preserved in Windsor," wrote Monte Stewart, a Boise-based marriage law attorney retained by the state.
In U.S. v. Windsor, the high court overturned part of the Defense of Marriage Act, but the state contends that a majority of the justices maintained that states have the power to define marriage.
"By contrast, this case involves not just a refusal by the federal government to accommodate a state's definition of marriage, but an outright abrogation of such a definition — by a single federal court wielding a federal injunction and acting under the banner of the federal Constitution," Stewart wrote.
Shelby struck down Utah's voter-approved law defining marriage as between one man and one woman, saying it violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
It is not known how soon Sotomayor will act. She gave proponents of gay marriage until noon Friday to respond to the state's application for a stay. Sotomayor was scheduled to help ring in 2014 in New York City on Tuesday by pushing the button to start the ball drop in Times Square.
If Sotomayor declines to grant a stay or wants input from the nine-member court, the state asks that she refer the application to the full court.
James Magleby, a lawyer for the three gay and lesbian couples who sued Utah over its definition of marriage, said the state's request lacks merit.
"The 10th Circuit has already established a rare, expedited briefing schedule on these issues, and hundreds of same-sex couples have already been married in Utah, thus, there is no emergency need for a stay," he said.
Attorney Bill Duncan, president of the Utah-based Marriage Law Foundation, said even though the initial rush on marriage licenses has slowed, the Supreme Court needs to say this isn't a time for "showmanship" on behalf of judges.
"The practical effect is probably at this stage not nearly as important as the precedent the U.S. Supreme Court will set for other lower courts to say, 'This is no time for dramatic gestures. We've got to take this in stride,'" he said.
In its application for a stay, the state says Shelby acted outside his constitutional authority. It makes some of the same arguments it has in the past, including the strong likelihood Shelby's decision would be overturned and that Utah is suffering irreparable harm in allowing same-sex marriages.
Both Shelby and the 10th Circuit rejected those arguments, and Cliff Rosky, a University of Utah law professor and board chairman of Equality Utah, a group that advocates for gay rights, said he expects Sotomayor and the high court to do the same.
Rosky said it's "extremely rare" for the Supreme Court to grant a stay when lower courts have not. "The burden for the state almost couldn't be higher," he said.
Duncan said the state chose arguments, including the long history of traditional marriage and that children fare best when raised by their two biological parents, that show it will aggressively defend Utah's right to define marriage.
"I think that signals that the state is going to make a very strong, full-throated argument in favor of the marriage laws," he said. "I think they're going to say the people of the state were acting, contrary to what Judge Shelby suggested, entirely rationally in wanting to preserve something that has been good for society."
In 2004, Utah voters by a 2-to-1 margin approved an amendment to the state constitution defining marriage as the union of one man and one woman.
The Utah Attorney General's Office estimated it could cost $2 million to hire outside counsel to appeal Shelby's ruling. But the office apparently is having difficulty getting a law firm to take the case.
Newly appointed Attorney General Sean Reyes put out a request for proposals Tuesday. It is accepting bids until Jan. 7. The 10th Circuit Court of Appeals set a Jan. 27 deadline for the state to file written arguments as part of an expedited schedule for the appeal.
Magleby said the plaintiffs in the court case are disappointed that Utah would spend taxpayers' money to try to reinstate laws which deny due process and equal protection.
"It doesn’t have to be this way," he said, noting New Jersey Gov. Chris Christie, a Republican, asked the state's attorney general to nix the appeal of a ruling that legalized same-sex marriage there.
But Utah GOP leaders says they support Reyes' plan to hire outside counsel and are willing to spend $2 million to defend the state's marriage law.
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