WASHINGTON -- It will likely be several days before Utah asks the U.S. Supreme Court to stop same-sex marriages in the state, the Utah attorney general’s office said Thursday.
The state had been expected to file a petition with the court as early as Thursday in a last-ditch effort to halt the weddings that have occurred since a federal judge struck down the state’s ban on such unions last week.
But the attorney general's website posted a notice that said outside lawyers need to be consulted before filing.
“The Attorney General’s Office is preparing an application to the United States Supreme Court requesting a stay of the district court’s order,” the notice said. “Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days. It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible.”
The state’s petition would go to Justice Sonia Sotomayor, who has jurisdiction over cases coming from Utah and neighboring states. She would likely refer the issue to her colleagues. There’s no deadline for the justices to make a decision, but they typically act quickly on such requests.
Last Friday, U.S. District Judge Robert Shelby ruled that Utah’s constitutional amendment limiting marriage to opposite-sex couples, which voters passed in 2004, violated the U.S. Constitution’s guarantee of equal protection of the laws.
His ruling was the first to hold that the Constitution guarantees same-sex couples the right to marry since last summer’s Supreme Court rulings, which took a significant, but limited, step in that direction.
State officials asked Judge Shelby to put his ruling on hold until a federal appeals court could review the case, saying it would cause a “chaotic situation.” When Shelby declined, officials turned to the U.S. 10th Circuit Court of Appeals, which turned them down on Christmas Eve.
The denial by the 10th Circuit panel -- which consisted of two appeals court judges, one appointed by President Obama and the other by President George W. Bush -- was notable because it hinted at skepticism of the state’s arguments.
To obtain a stay, the state had to show that it had a substantial likelihood of winning its eventual appeal and that allowing the marriages to continue in the meantime would cause “irreparable harm” to the state’s interests. The judges seemed unconvinced on both counts.
By contrast, when a federal judge struck down California’s Proposition 8, which banned same-sex marriages, the 9th Circuit blocked the ruling and kept the stay in effect until the Supreme Court ruled on the case last June.
Since Shelby’s ruling, hundreds of same-sex couples have wed in Utah -- weddings that in theory could be invalidated if the decision is eventually overturned. As of Monday evening, the Deseret News in Salt Lake City reported more than 700 marriage licenses had been issued to same-sex couples in the state. Many additional couples married Tuesday.
State officials may face an uphill battle in persuading the Supreme Court to step in at such an early stage. It’s common for the justices to put a ruling on hold once they’ve decided to review a case. But in this case, the state’s appeal hasn’t even been argued to the lower appellate court. The justices could simply decline Utah’s request to get involved and wait to see how the lower court handles the matter.
If that happens, same-sex marriages in Utah probably would continue for weeks or months. The appeals court panel that denied the stay Tuesday said the state’s appeal would be expedited. But even in a hurried-up status, an appeals court ruling might not come until early spring.
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