Utah state lawyers have again been turned away in their bid to put at least a temporary stop to gay marriages in the state. The 10th Circuit Court of appeals on Tuesday refused to grant the state’s request for a stay on marriage licenses to gay couples while an appeals process plays out.
About 700 gay couples have obtained wedding licenses since U.S. District Judge Robert J. Shelby on Friday declared Utah’s gay marriage ban unconstitutional, but lawyers for the state have tried every legal avenue to halt the practice. Shelby on Monday denied their bid to temporarily stop gay marriage while the appeals process plays out, and they quickly went to the 10th U.S. Circuit Court of Appeals.
Acting Attorney General Brian Tarbet told the Salt Lake Tribune
moments after the appeals court decision that the state would appeal again to the U.S. Supreme Court by Thursday. Justice Sonia Sotomayor is assigned to oversee the 10th Circuit and will consider Utah’s request.
Utah is the 18th state where gay couples can wed or will soon be able to marry, and the sight of same-sex marriages occurring just a few miles from the headquarters of the Mormon church has provoked anger among the state’s top leaders.
“Until the final word has been spoken by this Court or the Supreme Court on the constitutionality of Utah’s marriage laws, Utah should not be required to enforce Judge Shelby’s view of a new and fundamentally different definition of marriage,” the state said in a motion to the appeals court.
It is estimated that nearly two-thirds of Utah’s 2.8 million residents are members of The Church of Jesus Christ of Latter-day Saints, and Mormons dominate the state’s legal and political circles. The Mormon church was also one of the leading forces behind California’s short-lived ban on same-sex marriage.
The legal wrangling over the topic will likely continue for months, with the 10th Circuit likely to hear the full appeal of the case several months from now.
People began lining up Sunday night at the Salt Lake County clerk’s office in the hopes of getting licenses amid the uncertainty of the pending ruling by Shelby. Couples then got married once every few minutes in the lobby to the sound of string music from a violin duet.
They anxiously eyed their cellphones for news on Shelby’s decision, and a loud cheer erupted once word spread that he wouldn’t be blocking weddings. “We feel equal!” one man shouted; his partner called it “this magic happening out of the clear blue.”
Adam Blatter said he was in a panic to get married Monday morning before a judge might halt the issuance of licenses. He and his partner, Joseph Chavez, were elated when it became clear their wait was worthwhile, and they were shocked that it was happening in a state long known as one of the most conservative in the country.
“We expected Utah to be the last place we could get married,” Blatter said.
Even if the 10th Circuit had granted a stay, the marriage licenses that already have been issued probably would have remained valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It was not entirely certain, however, because Utah’s situation has unfolded differently than those of other states, and there’s no direct precedent, he said.
Not all counties are issuing the licenses. In Utah County, one of the most conservative in the state, County Clerk Brian Thompson made a conscious decision to defy the judge’s ruling and not grant marriage licenses to same-sex couples. He said he wants to see if the appeals court granted a stay first.
“I totally understand the position I’m in,” he said, “but I have a responsibility as elected official to proceed with caution.”
The Mormon church said Friday it stands by its support for “traditional marriage” and hopes a higher court validates its belief that marriage is between a man and woman.
In court Monday, Utah lawyer Philip Lott repeated the words “chaotic situation” to describe what has happened in the state since clerks started allowing gay weddings. He urged the judge to “take a more orderly approach than the current frenzy.”
“Utah should be allowed to follow its democratically chosen definition of marriage,” he said of the 2004 gay marriage ban.
In explaining his decision, Shelby said the state made basically the same arguments he had already rejected.
Adding to the chaos is the fact that Utah Attorney General John Swallow stepped down about a month ago amid a scandal involving allegations of bribery and offering businessmen protection in return for favors. The state has been relying on an acting attorney general, and Gov. Gary Herbert appointed a replacement Monday who will serve until a special election next year.
A spokesman for the Utah Attorney General’s Office told the Salt Lake Tribune
that while his office wasn’t advising county clerks on Tuesday morning, the law said that they must issue marriage licenses to same-sex couples.
Shelby “has put out his ruling that anyone who denies a marriage license [could be] in contempt of the court and in contempt of the law,” said Ryan Bruckman on Tuesday. “According to that, everyone should be [issuing licenses].”
Peggy Tomsic, the lawyer for the same-sex couples who brought the case, called gay marriage the civil rights movement of this generation and said it was the new law of the land in Utah.
“The cloud of confusion that the state talks about is only their minds,” she said.
Shelby said in Friday’s ruling that the constitutional amendment that Utah voters approved violates gay and lesbian couples’ rights to due process and equal protection under the 14th Amendment. He said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.
Legal scholars speculate that the case could someday be reviewed by the U.S. Supreme Court if the justices decide they want to weigh in on whether state same-sex marriage bans violate the U.S. Constitution.
Tobias said that’s a real possibility, but far from imminent. It will depend on what the appeals court decides and what happens with other court challenges in Nevada, Pennsylvania and Virginia, he said.