By Sunnivie Brydum
Originally published on Advocate.com January 02 2014 1:53 PM ET
After two federal courts declined to place a hold on a ruling that established marriage equality in Utah last month, the state's attorney general has appealed to the nation's highest court, asking for an emergency stay while the state appeals the December 20 decision.
The state's newly sworn-in attorney general, Sean Reyes, filed the petition to Supreme Court Justice Sonia Sotomayor on New Year's Eve. The state's request contends that Sotomayor — who oversees requests from the 10th Circuit, which includes Utah — should grant a stay on District Judge Robert Shelby's ruling, which found Utah's voter-approved ban on same-sex marriage unconstitutional, while the state appeals it.
Reyes's rationale is that if the U.S. Court of Appeals for the 10th Circuit affirms Shelby's ruling, the Supreme Court would be likely to review it and reverse it. The petition further contends that Utah would be irreparably injured by being required to issue marriage licenses to same-sex couples that could be declared invalid if a higher court overturns Shelby's decision. There would be an "enormous disruption" if the state has to "unwind" those marriages, Reyes contends.
His petition also asserts that Shelby's decision interferes with the state's ability "to define marriage through ordinary democratic channels." It adds, "Constitutional rights do not spring into existence by mass political activity triggered by the decision of a single district court judge."
Reyes said Wednesday that he plans to spend as much as $2 million in taxpayer dollars hiring legal counsel to defend the state's prohibition on same-sex marriage.
For her part, Justice Sotomayor could directly rule on Utah's request for a stay, or she could refer the issue to the full Supreme Court. She has asked lawyers for the same-sex couples in the case that led to Shelby's decision to file a formal response to the stay request by noon Eastern time Friday.
There are strong arguments both for and against granting the stay, said Steven Wermiel, a constitutional law professor at American University in Washington, D.C. "The movement toward legalization of same-sex marriage is rapid around the country and the unfairness of denying same-sex marriage received a pretty compelling argument in the Supreme Court’s defense of marriage [hearing] last June," he told The Salt Lake Tribune. "That part of it makes a pretty good argument for denying the state." But, he added, "the traditional guidelines the court follows make a good argument for granting a stay."
Get up to speed on the multistate marriage equality strategy from the American Foundation for Equal Rights, in the LGBT legal group's latest "Marriage News Watch" below. Host Matt Baume touches on the Utah case, as well as ongoing challenges to newly enacted equal marriage rights in New Mexico and Illinois, and additional progress on the fight for equality in Oregon, Virginia, Ohio, Florida, and Arkansas.