Supreme Court issues stay in Utah gay marriage recognition case

By Dennis Romboy, Deseret News

Published: Fri, July 18, 2014, 3:15 p.m. MDT

 U.S. Supreme Court Justice Sonia Sotomayor speaks about her best-selling memoir, \

U.S. Supreme Court Justice Sonia Sotomayor speaks about her best-selling memoir, "My Beloved World," during an appearance at the University of Delaware in Newark, Del., Thursday, Sept. 19, 2013.

(Patrick Semansky, Associated Press)

SALT LAKE CITY — The U.S. Supreme Court put recognition of same-sex marriages performed in Utah on hold until the outcome of the state's appeal of a lower court ruling.

The stay was granted Friday after Justice Sonia Sotomayor referred the state's petition to the full court. It will remain in place pending a decision on the case in the 10th Circuit Court of Appeals.

The order marks the second time the justices have put on hold a federal court ruling in favor of same-sex marriage in Utah, and might signal the Supreme Court's interest in taking up the core issue.

Gov. Gary Herbert called the stay a correct decision and an important step toward a final resolution.

"Regardless of where you stand on same-sex marriage, all Utahns deserve clarity and finality when it comes to the law," Herbert said in a statement. "I believe states have the right to determine their laws regarding marriage, and as I have said all along, that decision will ultimately come from the United States Supreme Court."

Joshua Block, an ACLU attorney who represents four couples who sued to the state to have their marriages recognized, called the decision disappointing.

"But despite this setback, we are confident that when the appellate process is completed we will prevail and these lawfully married same-sex couples will once again be given the same legal protections as ever other legally married Utah couple," Block said in a statement.

Bill Duncan, head of the Provo-based Marriage Law Foundation, said Friday's stay indicates the Supreme Court is "more likely than not" to weigh in on whether states can prohibit same-sex marriage.

"It seems to suggest the court is going to want this kind of case at some point," Duncan said. "It doesn’t tell us where they'll end up, but they realize this is an issue they're going to have to deal with."

U.S. District Judge Dale Kimball ruled in May that Utah must extend marital benefits to about 1,300 gay and lesbian couples who married during the brief time it was legal in the state this past winter. He temporarily stayed his decision. The state appealed and asked the 10th Circuit to extend Kimball's stay pending an outcome in the case.

The 10th Circuit found in a split decision last week that Utah failed to prove the need to stay a lower court decision, forcing the state to recognize the marriages. A three-judge panel allowed a temporary stay to continue for 10 days so the state could appeal to the Supreme Court. That temporary stay was set to expire Monday morning.

In that ruling, the panel hinted that the state's appeal of Kimball's ruling isn't likely to succeed.

Utah had to prove four things, including a likelihood of success on appeal. Judges Carlos F. Lucero and Jerome A. Holmes said the state didn't meet those requirements.

Judge Paul Kelly dissented, saying the couples' right to marry was created by a "non-final" federal court decree.

Plaintiff Tony Milner said he's frustrated by the continued legal maneuvering.

"I think the governor and the attorney general need to understand that my family has been on hold for six months," said Milner, who along with husband Matthew Barraza is in the middle of adoption proceedings. "The way the law was at the time, our marriage was legal. We're just simply asking for the enforcement of the marriage."

Utah Attorney General Sean Reyes issued a statement on the stay Friday, calling it "necessary to the overall process … (toward) orderly resolution of the Amendment 3 cases."

"While obtaining a clear and final decision by the highest court on all related issues is in the best interest of Utahns, we recognize that it does not make the waiting and uncertainty during that process any easier," Reyes said. "Our internal team of attorneys have diverse personal beliefs about the issues in question but unite in their dedication to seek final clarity and uphold Utah law."

The attorney general's office has argued that the 10th Circuit made a mistake in directing the state to recognize "interim marriages" before the Supreme Court decides whether same-sex marriage is constitutional.

Gene Schaerr, the state's lead attorney, contends that hearing Utah's Amendment 3 case would give the Supreme Court the opportunity to decide whether the Constitution prohibits a state from defining marriage as between one man and one woman.

"That decision will also likely dictate the outcome in this case. If Utah’s laws are struck down, Utah will recognize plaintiffs’ interim marriages; if Utah’s laws are upheld, Utah will do everything possible to comply with them," he wrote.

Block argued that there is no such thing as interim marriages. The state seeks to "effectively divorce" those couples against their wishes by placing their marriages on hold, he wrote in a court brief.

"In seeking to nullify marriages that were legal at the time they were solemnized, defendants seek to do something that is unprecedented in our nation's history," Block wrote.

Schaerr argued that until the constitutional question is resolved, requiring the state to recognize the marriages and provide marital benefits is premature and unwarranted. The unions would be void if same-sex marriage is found unconstitutional, he wrote.

Block contended that the marriages must be recognized whether the case is ultimately affirmed or reversed.

"If any uncertainty exists, it is the product of defendants' unlawful attempt to put these marriages 'on hold' and continued attempts to seek emergency stays to avoid complying with federal and state court orders rejecting their legal arguments," he wrote.

Contributing: Richard Piatt

Email: romboy@deseretnews.com, Twitter: dennisromboy

1. RedWings
July 18, 2014

Rhetoric from both sides of this issue aside, this is a good decision by the SCOTUS.

SSM will fuundamentally alter society in ways we are just beginning to see in states like MA, where it has been legal for a while. Some changes are good; some not.

I am glad the SCOTUS is taking a more cautious approach to this issue than some of the federal judges.

2. Frozen Fractals
Salt Lake City, UT,
July 18, 2014

The court isn't trying to decide if same-sex marriage is Constitutional, it's trying to decide if Amendment 3 is unconstitutional. Since the verdict striking down Amendment 3 was stayed, however, it's currently law (hence no more same-sex marriages being performed). That means it'd trigger the second clause of Amendment 3 since same-sex couples don't fall under the first so I would consider the stay on this to be the correct decision.

3. Hutterite
American Fork, UT,
July 18, 2014

That's too bad. It will come about, of course, but the courts are all being cautious and if they can pass it off, they do.

4. kimnprovo
Orem, UT,
July 18, 2014

RedWings... what are some of the negative changes in MA?

5. cory.byufan
Provo, UT,
July 18, 2014

Judge Shelby must have known Utah would appeal his decision, so if anyone is to blame for the 1300+ marriages currently in limbo, it’s him for not granting a stay in the first place to prevent the marriages from happening. Governor Herbert promises to recognize those marriages when they are good and legal, but the case isn’t settled yet, so everyone just needs to be patient until the end. The Supreme Court made the right choice today.