Utah asks Supreme Court to restore gay marriage ban

Cheryl Haws, right, and her partner Shelly Eyre have their photograph taken after receiving their marriage license at the Utah County clerk's office in Provo, Utah.
(Mark Johnston / Associated Press)

WASHINGTON - Utah’s attorney general asked the U.S. Supreme Court on Tuesday to restore a state law banning same-sex marriages by issuing an emergency stay of a lower court’s ruling that held gays and lesbians have a constitutional right to marry.

For the high court, which has not been asked to rule on the topic since issuing two landmark rulings in June, Utah’s request could trigger a closely watched decision with nationwide implications on the future of gay marriage in the U.S.

In considering Utah’s request, justices are in effect being asked to make a quick assessment of whether gays and lesbians should have an equal right to marry under the Constitution, a question they carefully dodged in June.


In a 5-4 ruling last year, the court struck down part of the federal Defense of Marriage Act and ruled that legally married same-sex couples are entitled to equal benefits under the law. But in a second 5-4 ruling, they relied on procedural grounds to throw out an appeal involving California’s Proposition 8, a decision that had the legal effect of invalidating California’s ban on same-sex marriage without establishing a new constitutional right for gays and lesbians nationwide.

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Now that larger question is before the court again in the Utah case. Under the court’s rules, justices reviewing Utah’s emergency order will need to consider whether the state is likely to succeed on the merits of the case. Whatever they decide could provide new insights into whether a majority of justices are ready to go further than they were earlier this year.

If five justices agree that Utah is likely to prevail in proving the constitutionality of its law limiting marriage to unions involving a man and a woman, the high court is likely to issue an order that puts the lower court’s ruling on hold while the state pursues its appeal.

If the court turns down the state’s request, however, even if announced in a one-line order, the decision could signal that a majority of the justices are ready to uphold gay marriage as a constitutional right when the issue returns to them, perhaps as soon as 2014.

U.S. District Judge Robert Shelby, an appointee of President Obama in Utah, ruled in favor of gay marriage on Dec. 20 when he struck down a provision of the state’s constitution defining marriage as a union between a man and a woman.

He refused the state’s request to put his decision on hold, clearing the way for hundreds of same-sex couples to rush to get married over the last two weeks.

The U.S. 10th Circuit Court of Appeals in Denver also refused to stay Shelby’s ruling. That prompted the newly appointed Utah attorney general to file his emergency appeal with Justice Sonia Sotomayor, who oversees appeals from that region.

She is likely to ask for a response from the lawyers who challenged the state’s law and then refer the matter to the full court.


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