Lawyers for gay couples urge U.S. Supreme Court to keep same-sex marriage going

Posted at 10:52 AM, Jan 03, 2014

SALT LAKE CITY -- Lawyers for three couples who challenged Utah's ban on same-sex marriage urged U.S. Supreme Court Justice Sonia Sotomayor to reject the state's request to halt the marriages.

"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," plaintiff's attorney James Magleby wrote in a response to Utah's application to the high court seeking a stay.

Read the filing with the U.S. Supreme Court here.

Utah filed an application with Justice Sotomayor to ask for same-sex marriages to be halted. The state called the marriages "an affront" to the sovereignty of Utah and the voters who passed Amendment 3, which defined marriage in the state as between one man and one woman. Last month, U.S. District Court Judge Robert Shelby declared Amendment 3 unconstitutional, ruling that it violated same-sex couples' rights to due process and equal protection under the U.S. Constitution.

Since then, lawyers for the state have tried five times to have same-sex marriages halted.Both Judge Shelby and the 10th Circuit Court of Appeals in Denver rejected their requests. More than a thousand same-sex couples have been married in Utah between the ruling and now.

Magleby wrote that the state has a higher burden in order for the U.S. Supreme Court to grant a stay. He challenged the state's claims that upholding Amendment 3 protects child-rearing.

"Applicants cannot show that this Court is likely to reverse the District Court's ruling by citing to a hodgepodge of articles that purportedly show that same-sex parents are inferior to opposite-sex parents," he wrote. "In addition to being false, Applicants' argument does not resolve the constitutional issues presented by this case."

Magleby also challenged the state's claims that it would suffer "irreparable harm" by allowing same-sex marriages to continue, pointing to a directive from Utah Governor Gary Herbert to all state agencies that they comply with the District Court's ruling, and an email from his chief of staff to Cabinet members that "many agencies will experience little to no impact" as a result of Amendment 3 being overturned.

Utah Attorney General's spokesman Ryan Bruckman said the office had no comment on the plaintiff's filing. He also told FOX 13 the attorney general's office had no direction from the U.S. Supreme Court on whether they would need to reply to the filing.

Justice Sotomayor could grant or deny Utah's request for a stay, or she could ask the full U.S. Supreme Court to consider it.

That is likely to happen, said Troy Booher, a lawyer at Zimmerman, Jones, Booher, a Salt Lake City firm that specializes in appeals. He believed that any decision could come next week.

"If I had to guess, I would say it's likely the stay is going to be denied," he told FOX 13 on Friday.

Booher pointed to the accelerated schedule the 10th Circuit Court of Appeals has set to hear the appeal of Amendment 3. He said with briefings in January and February, he anticipated arguments in March and a decision on the constitutionality of the amendment by summer.

Marriages being performed in Utah since Amendment 3 was overturned, Booher said, is another factor for the U.S. Supreme Court to consider.

"At this point, so many marriages have occurred that the additional harm from not granting a stay over the next two months goes down every day," he said. "I suspect they will not grant the stay, but they can do whatever they want and I think it's a pretty close call."

If the U.S. Supreme Court were to grant a stay, Booher said it would raise a new legal issue: Whether Amendment 3 is back in force and if the marriages that had been performed were immediately invalidated.

"There would be a question, and a lot of legal wrangling over what exactly is the effect of Amendment 3 -- and it's now effective but you already have same-sex marriages in Utah?" he said.

Such a view, if taken by the state, could trigger a new round of litigation, Booher said.

Granting a stay would cause irreparable harm to same-sex couples and their children, lawyers for the gay couples wrote.

"In addition to subjecting same-sex couples and their children to profound legal and economic vulnerability and harms, Utah's exclusionary marriage laws stigmatize the relationships of same-sex couples as inferior and unequal," Magleby wrote.

Issuing a stay could leave many couples in legal limbo, he said. He noted in the filing that Kate Call, one of the plaintiffs, is suffering from a terminal illness "that may very well prevent her from surviving the instant appeal."