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Federal appeals court has another big same-sex marriage case pending

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Posted at 4:58 PM, Jun 26, 2014
and last updated 2014-06-27 00:16:12-04

SALT LAKE CITY -- The 10th U.S. Circuit Court of Appeals leveled an historic decision on same-sex marriage, but it's not the only Utah marriage case pending.

The federal appeals court is being asked to decide whether Utah should be forced to recognize more than 1,200 same-sex marriages performed after Amendment 3 was overturned.

"It gives us a lot of confidence that we'll receive a positive ruling in our case," ACLU of Utah Legal Director John Mejia told FOX 13.

On Wednesday, the 10th Circuit Court ruled that Utah's ban on same-sex marriage was unconstitutional. The ruling upheld a decision by a federal judge in Utah who declared Amendment 3 violated gay and lesbian couples' right to equal protection and due process under the U.S. Constitution.

After U.S. District Court Judge Robert Shelby's ruling on Dec. 20, 2013, gay and lesbian couples rushed to county clerk's offices to marry. FOX 13 examined public records and marriage licenses and found more than 1,200 married in 17 days, before the U.S. Supreme Court halted it pending an appeal.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

Governor Gary Herbert ordered state agencies not to recognize those marriages pending an appeal of Amendment 3 to the 10th Circuit Court. The ACLU sued on behalf of four couples. U.S. District Court Judge Dale Kimball sided with them, ordering Utah to recognize the marriages.

Utah appealed the judge's order to the 10th Circuit.

"Either the 10th Circuit vacates its temporary stay and orders that Utah start recognizing these marriages, or the 10th Circuit could say, 'Well, we're going to hold off having this order go into effect,'" Mejia said.

The Utah Attorney General's Office said that because the Amendment 3 case and the marriage recognition case are separate, Wednesday's decision "does not immediately impact the (marriage recognition) case even though they are related by subject matter and circumstance."

The 10th Circuit set a series of deadlines for filings on the marriage recognition case, but still no ruling. Mejia said they await a decision -- noting that if the state loses it may go to the U.S. Supreme Court again.

At his monthly KUED news conference, Gov. Herbert was asked if Utah would recognize the marriages if the state lost the Amendment 3 case.

"What I believe we will do is follow the law of the land. I think that's my responsibility as the governor, as the executive branch," he said.

Meanwhile, the state is considering its next options in the Amendment 3 case. The Utah Attorney General's Office said no formal decision has been made on an appeal. No decision has been made on whether the outside counsel hired to litigate the case will remain in place.

Gene Schaerr and two other attorneys were hired at a cost of $300,000 to defend the state in the Amendment 3 case. Schaerr was contracted through the 10th Circuit appeal. Missy Larsen, a spokeswoman for Utah Attorney General Sean Reyes, said there is an option to extend the contract through the U.S. Supreme Court appeal.

Reyes and Schaerr will talk about the possibility of extending that contract, she said.

There are also changes taking place on the plaintiff's side. Restore Our Humanity, the group that built the case against Amendment 3, said Thursday it is stepping away from the case as it advances out of Utah.

"Restore Our Humanity is a tiny, volunteer, grass-roots organization which has never sought the national spotlight. Our focus as an organization always has been to serve the diverse communities of, and effect real, lasting, positive change here in Utah," the group said in a statement.

The group found the couples and the law firm in the case that became known as Kitchen v. Herbert. National gay rights groups are now expected to have more of a role as the case moves toward the U.S. Supreme Court.

"Restore Our Humanity is honored to pass the torch of Kitchen v. Herbert to these organizations," the group said.

Restore Our Humanity spokesman Matthew Spencer said the group would still raise money to pay the estimated $700,000 in legal bills racked up by the plaintiffs.

The group has so far raised $130,000  -- $100,000 of which has been given to the law firm for its costs, Spencer said.