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Federal appeals court denies stay, no halt to same-sex marriages in Utah

Constitutional law professor opines Utah faces long odds to get stay granted, considering two courts have already rejected it and marriages have been going on for days now.
Tuesday, December 24, 2013
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Tom Smart, The Deseret News (AP)

Tom Smart, The Deseret News (AP)
About 1,500 people gather to celebrate marriage equality after a federal judge declined to stay his ruling that legalized same-sex marriage in Utah, at Washington Square just outside of the Salt Lake City and County Building Monday, Dec. 23, 2013, in Salt Lake City.

Updated: 7:35 p.m. MST

A federal appeals court ruled Tuesday that gay marriages can continue in Utah, denying a request from the state to halt same-sex weddings that have been occurring at a rapid rate since last week in one of the most conservative U.S. states.

The 10th U.S. Circuit Court of Appeals’ rejection of Utah’s request for an emergency stay marks yet another legal setback for the state. The same federal judge who ruled that Utah’s same-sex marriage ban violates gay and lesbian couples’ constitutional rights previously denied the state’s request to halt the marriages.

The appeals court said in its short ruling that a decision to put gay marriage on hold was not warranted, but said it put the case on the fast track for a full appeal of the ruling.

Utah’s last chance to temporarily stop the marriages would be the U.S. Supreme Court. That’s what the Utah Attorney General’s Office is prepared to do, said spokesman Ryan Bruckman. “We’re d isappointed in the ruling, but we just have to take it to the next level,” Bruckman said.

Utah Gov. Gary Herbert’s office declined comment on the decision.

Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage, thinks Utah faces long odds to get their stay granted, considering two courts have already rejected it and marriages have been going on for days now.

“The longer this goes on, the less likely it becomes that any court is going to entertain a stay,” Tobias said.

The appeals court ruling means county clerks can continue to issue marriage licenses to gays and lesbians. More than 700 gay couples have obtained marriage licenses since Friday, with most of the activity in Salt Lake City.

One of the couples that brought the case, Moudi Sbeity and Derek Kitchen, were driving home from the grocery store when their attorney called with the good news. Sbeity said it’s wonderful that multiple levels of courts are making it clear there’s no room for discrimination.

“It seems like we win over and over again. This is crazy,” Sbeity said. “This has been the best Christmas gift ever.”

Judge Robert J. Shelby’s decision to strike down a law passed by voters in 2004 drew attention given Utah’s long-standing opposition to gay marriage and its position as headquarters for the Mormon church. It made Utah the 18th state where gay couples can wed.

“Until the final word has been spoken by this Court or the Supreme Court on the constitutionality of Utah’s marriage laws, Utah should not be required to enforce Judge Shelby’s view of a new and fundamentally different definition of marriage,” the state said in the motion to the appeals court.

It is estimated that nearly two-thirds of Utah’s 2.8 million residents are members of The Church of Jesus Christ of Latter-day Saints, and Mormons dominate the state’s legal and political circles.

The Mormon church was one of the leading forces behind California’s short-lived ban on same-sex marriage, Proposition 8, which voters approved in 2008, only to have it struck down in the federal courts for violating the constitutional rights of gays and lesbians. The church said Friday it stands by its support for “traditional marriage” and hopes a higher court validates its belief that marriage is between a man and woman.

Shelby’s ruling has created a confusing set of circumstances for county clerks, same-sex couples and state officials as they wait on an appeals court to bring some clarity to the issue.

Some county clerks were refusing to issue marriage licenses to gay couples, even though they could face legal consequences.

The Utah attorney general’s office warned counties they could be held in contempt of federal court if they refuse to issue the licenses.

In the meantime, state agencies have begun trying to sort out how the gay marriages may affect state services.

Herbert’s office sent a letter to state agencies Tuesday afternoon advising them to comply with the judge’s ruling or consult the Utah attorney general’s office if the ruling conflicts with other laws or rules.

The Utah Department of Workforce Services, which administers programs such as food stamps and welfare, is recognizing the marriages of gay couples when they apply for benefits, spokesman Nic Dunn told The Associated Press on Tuesday.

In court Monday, Utah lawyer Philip Lott described the scenario unfolding in Utah as a “chaotic situation.” He urged the judge to “take a more orderly approach than the current frenzy.”

© 2013, Associated Press, All Rights Reserved.
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