Utah’s attorney general on Wednesday asked the U.S. Supreme Court for an emergency stay of a federal appeals court’s decision last month striking down the state’s ban on same-sex marriages.
Unless the high court intervenes, the stay put in place by the 10th U.S. Circuit Court of Appeals expires Monday morning and 1,000 same-sex marriages performed in December must be recognized by Utah.
Developments in the Utah care are being watched closely by Colorado and other states within the 10th Circuit. A pending federal lawsuit in Colorado cites the Utah decision in its motion to strike down the state’s similar ban. A state judge also noted the 10th Circuit decision when he struck down the voter-approved ban.
Those federal and state decisions prompted county clerks in Boulder, Denver and Pueblo counties to begin issuing marriage licenses to same-sex couples.
The 10th Circuit already had stayed its decision in Kitchen vs. Herbert pending action by the Supreme Court. But in a separate decision in May, U.S. District Judge Dale Kimball gave Utah until July 21 to appeal his decision ordering Utah to recognize marriage licenses already issued and allow other gay couples to wed.
“Both the district court and a divided 10th Circuit have denied Applicants’ requests for a full stay pending appeal, although the 10th Circuit has granted a temporary stay that will expire at 10:00 a.m. Eastern Daylight Time on Monday,” the Utah motion filed Wednesday says.
The emergency application was directed to Supreme Court Justice Sonia Sotomayor, the same justice who stayed the earlier decision tossing Utah’s gay-marriage ban.
Utah Attorney General Sean Reyes also is asking Sotomayor to stay the order by Kimball.
“Absent a final decision by an appellate court of last resort declaring Utah’s marriage laws unconstitutional, the democratically produced decisions of Utah’s citizens should not be overturned based on the discretion of a single federal district judge unchecked by subsequent appellate review,” the motion says.
Utah’s filing indicates it soon will appeal the 10th Circuit decision to the U.S. Supreme Court.
“That petition will give this Court an opportunity to determine whether the 14th Amendment prohibits the people of a state from defining marriage as between one man and one woman,” the motion says. At that point, Utah will honor whichever decision the high court makes, Reyes’ motion states.
Attorney General John Suthers has asked the Colorado Supreme Court to prohibit county clerks across the state from issuing marriage licenses to gay couples pending a final resolution of the 10th Circuit decision.
Kirk Mitchell: 303-954-1206, denverpost.com/coldcases or twitter.com/kirkmitchell