Damian Dovarganes, Associated Press
Utah asked the U.S. Supreme Court on Wednesday to stay an appeals court ruling that would require it recognize same-sex marriage performed in the state starting next Monday.

SALT LAKE CITY — Utah asked the U.S. Supreme Court on Wednesday to stay an appeals court ruling that would require it to recognize same-sex marriages performed in the state.

The Utah Attorney General's Office argues that the 10th Circuit Court of Appeals made a mistake in directing the state to validate "interim" marriages before the high court decides whether gay marriage is constitutional.

A three-judge 10th Circuit panel in a split decision last month found marriage is a fundamental right under the 14th Amendment, and that access to marriage cannot be denied to same-sex couples. The state intends to appeal the ruling in Kitchen v. Herbert to the Supreme Court.

Gene Schaerr, the state's lead attorney in same-sex marriage cases, contends that appeal would give the Supreme Court the opportunity to determine whether the 14th Amendment prohibits a state from defining marriage as between one man and one woman.

"That decision will also likely dictate the outcome in this case: If Utah’s laws are struck down, Utah will recognize plaintiffs’ interim marriages; if Utah’s laws are upheld, Utah will do everything possible to comply with them," he wrote in a 28-page emergency brief.

The state's petition for a stay is directed to Justice Sonia Sotomayor, who oversees the six states that make up the 10th Circuit. Sotomayor put the brakes on same-sex marriage in Utah last December with an order that appeared to have the support of all nine justices because there were no dissenting votes.

The 10th Circuit ruled last Friday that Utah failed to prove the need to delay a lower court decision requiring the state to extend marriage benefits to about 1,300 same-sex couples who were married in Utah in December and January.

A three-judge panel allowed a temporary stay to continue for 10 days so the state could appeal to the Supreme Court. The temporary stay expires at 8 a.m. Monday.

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 short time that same-sex marriage was legal in Utah. They sued when the governor's office issued a directive against recognizing the marriages as valid.

John Mejia, an ACLU attorney for the couples, said he's unconvinced that the state has met the requirements for the Supreme Court to issue a stay.

Utah hasn't demonstrated that the court would disagree with 10th Circuit decision for the marriages to be recognize, Mejia said.

"We don't think they have shown that at all. We think the 10th Circuit's opinion is very well reasoned and thoughtful," he said.

Mejia also said there's no harm to the state in forcing it to validate the marriages because that's what it should be doing anyway.

"From our perspective, the law is clear and there is certainty that these marriages should be recognized. The uncertainty is created by continuing to try to strip them of recognition," he said.

Mejia said lawyers for the couple intend to file a response with the Supreme Court on Thursday.

Evans v. Utah is separate from the original federal case challenging Utah's gay marriage ban. But Schaerr wrote that a stay is called for in Evans because of its close connection to the Kitchen case.

Once Kitchen is resolved, the state and same-sex couples who married in Utah will know the status of their marriages, he wrote. Until then, Schaerr wrote, requiring the state to recognize the marriages and provide marital benefits is premature and unwarranted.

Schaerr argued the unions would be void if the same-sex marriage is found unconstitutional.

"How will the state and plaintiffs address the problems such a scenario would create?" he wrote, adding neither should be subjected to that possibility.

In May, U.S. District Judge Dale Kimball ordered Utah to recognize same-sex marriages performed in the state. He ruled 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 wrote the state put those couples and 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.

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