WASHINGTON — Since hundreds of same-sex couples already have married in Utah, there is no urgent need for the Supreme Court to intervene now in the legal battle, lawyers for gay couples told the justices.
They were responding to an emergency appeal filed earlier this week by Utah's attorney general, who asked the high court to call a temporary halt to same-sex weddings in the state. The couples argued that they would be harmed if the court did so. The state, they said, had little at risk at this point.
The Utah case poses a major question that is looming before the court: Do gays and lesbians have a constitutional right to marry, regardless of their state's laws? For now, however, the issue before the justices is the narrower one of whether to allow same-sex marriages in the state to continue while the bigger issue wends its way through the courts.
The briefs from the two sides go initially to Justice Sonia Sotomayor, who handles emergency appeals from Utah and neighboring states. She likely will refer the matter to the full court to be considered next week.
On Dec. 20, a federal district judge declared Utah's ban on same-sex marriages unconstitutional. The judge declined to put his ruling on hold while the state appealed, and the 10th Circuit Court of Appeals likewise allowed marriages to proceed. By the end of last week, more than 900 gay couples had married in the state, according to counts by local news media.
Under the court's rules, the justices can intervene to block the judge's decision if a majority of them believe his ruling was probably incorrect and is also likely to cause "irreparable harm" to the state if it is allowed to be in effect.
In a lengthy brief filed Friday, the lawyers for the same-sex couples say the state would not suffer any significant harm from additional marriages at this point. By contrast, they say, some of their clients would face "irreparable harm" if their marriages were called into doubt.
They cited two recently married women as an example. "It is undisputed that Karen Call is suffering from a terminal illness that may very well prevent her from surviving the instant appeal," they wrote.
"Forcing same-sex couples and their families to wait and hope for the best during the pendency of this appeal imposes an intolerable and dehumanizing burden that no family should have to endure," they said.
Last summer, the justices by a 5-4 vote struck down a federal law that denied benefits to legally married same-sex couples. They also cleared the way for gay marriages in California. But they did not rule directly on the constitutional arguments in the case.
The Dec. 20 ruling by U.S. District Robert Shelby in Salt Lake City was the first since then to decide that the Constitution did indeed give gays and lesbians a right to marry.
Some of the justices will be troubled that a federal judge has gone beyond their rulings to strike down the state's law as unconstitutional. But others may question whether there is a need to intervene now.