WASHINGTON — Utah same-sex couples who married last winter have asked Supreme Court Justice Sonia Sotomayor to allow a ruling to go into effect that would force the state of Utah to recognize those marriages.
Utah officials asked Sotomayor on Wednesday to put a trial court ruling that ordered the state to recognize those marriages on hold while the state appeals the case to the 10th Circuit Court of Appeals.
The case is separate from the main case challenging the constitutionality of Utah's ban on same-sex couples' marriages, Kitchen v. Herbert. This second case, Evans v. Utah, asks whether the state must recognize the marriages of the couples who married before the Supreme Court issued a stay of the trial court order in the main case in January.
The trial court said they must, and it refused to issue a stay of that order during the appeal to the 10th Circuit. The state then went to the 10th Circuit asking for a stay during the appeal, and it was again rejected. The 10th Circuit issued a temporary stay of the trial court's order until 10 a.m. July 21, however, so the state could seek Supreme Court review. They did so, and Sotomayor can decide the issue on her own or refer the matter to the full court.
Although Sotomayor requested a response from the plaintiffs by 10 a.m. Friday, the couples who had sued the state responded Thursday night, arguing that this situation is different from when the Supreme Court issued the stay of the main marriage case in January.
"The question before this Court when asked to grant an emergency stay in Kitchen was whether Utah should have to continue issuing additional marriage licenses beyond those that were already issued," they couples' lawyers wrote. "There is no similar claim of irreparable harm here ...."
In the state's Wednesday filing, it argued that a stay should be granted in part because if the trial court decision is upheld on appeal at the 10th Circuit, then "there is at least a reasonable probability that certiorari will be granted [by the Supreme Court] and at least a fair prospect of reversal."
That is so, the state argued, because it would be wrong for the trial court in the main case to be able to change the law by striking down the ban and change state practices by refusing to issue a stay in that case, which led to same-sex couples being allowed to marry, and then for the second lawsuit to then force the state to recognize those marriages while the appeal of the main case is still happening.
"Here, every single interim marriage performed as a result of the district court's Kitchen injunction directly challenges the sovereignty of Utah and its people," lawyers for Utah wrote. "A federal intrusion of this magnitude not only injures the State's sovereignty, it also infringes the right of Utahans to government by consent within our federal system."
The state also argued that a stay should be granted in the second case because "if Kitchen is ... reversed, Plaintiffs' marriages will be void under Utah law."
The ACLU, which represents several of the same-sex couples who married, responded Thursday night by stating that the couples have "valid" marriages that "must be recognized" — regardless of the ultimate outcome of the Kitchen case.
"The plaintiffs here are already legally married, and the question is whether the Constitution protects that existing marital relationship," the ACLU lawyers wrote.
Countering the Utah officials, the couples' lawyers wrote that "[n]one of the relevant considerations for granting certiorari is present in this case." Even if the Supreme Court did take the case, they wrote, "Defendants cannot establish that they are likely to succeed in their attempts to retroactively invalidate legal marriages for perhaps the first time in this nation's history."
The ACLU argued that the marriages likely would continue to be recognized regardless of the outcome of Kitchen, adding that even if the state succeeded in its appeal of the main marriage case, "[the state] would be able to fully enforce the State's marriage bans without invalidating the finite number of marriages that already took place."