Gay Marriage | Sonia Sotomayor | Supreme Court | Utah

Utah Attorney General Files Request for Stay of Gay Marriage Ruling with Supreme Court


The Utah Attorney General's office has filed a request with Justice Sonia Sotomayor at the U.S. Supreme Court for a stay pending appeal of Judge Robert Shelby's ruling striking down the state's ban on same-sex marriage

Sotomayor could rule on her own or ask the rest of the court to weigh in.

The Washington Blade reports:

Attorneys for Utah officials — Gov. Gary Herbert (R) and newly sworn-in Attorney General Sean Reyes — filed the 26-page stay request with U.S. Associate Justice Sonia Sotomayor, who’s responsible for the Tenth Circuit.

“As a result of the district court’s injunction, numerous same-sex marriages are now occurring every day in Utah,” the request states. “And each one is an affront not only to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels…but also to this court’s unique role as final arbiter of the profoundly important constitutional question that is so carefully preserved in Windsor.”

The Blade adds:

Now that the stay request is before the high court, Sotomayor has the option of referring the request to all of her colleagues on the bench, who would provide the final word on whether a stay would be granted on same-sex marriages.

However, if Sotomayor goes it alone and decides against the stay, Utah officials may select any justice on the Supreme Court — such as a justice with an anti-gay reputation like U.S. Associate Justice Antonin Scalia — and make a final attempt to request a stay.

Doug NeJaime, who’s gay and law professor at the University of California, Irvine, said he expects Sotomayor to refer the request to the entire court, but isn’t able make a prediction on what will happen.

Read the state's application for the stay HERE.

ReyesUtah's new attorney general Sean Reyes spoke about the marriage ruling in a Salt Lake Tribune profile shortly after his swearing in on Monday:

Reyes also addressed the current same-sex-marriage litigation that he is stepping into, with the state expected to ask the U.S. Supreme Court to stay a ruling by U.S. District Judge Robert Shelby striking down Utah’s constitutional ban on same-sex marriages and allowing more than a thousand Utah couples to wed.

"I’m starting day one with a case involving the defense of marriage. I’m not going to talk today, at least here, about the merits of the case, but this could be a potentially divisive case," Reyes said. "I don’t think it needs to be divisive. With the respect and good will from those on both sides of the issue, I think we can disagree in a healthy way and still remember we are all still Utahns."

After Monday’s ceremony, Reyes was asked if he viewed marriage to be a constitutionally protected right. Reyes said "marriage, as a fundamental right, has been developed in a number of cases with the Supreme Court."

The request also comes just hours before Sotomayor is scheduled to helm the New Year's Eve ball drop in Times Square.

UPDATE: Buzzfeed adds -

“Justice Sotomayor has called for a response due by noon E.S.T. on Friday, January 3, 2014,” Appellate Daily’s Michelle Olsen reported Tuesday afternoon, likely meaning that Sotomayor will be able to keep her plans to lead the Times Square ball drop at midnight Tuesday to ring in 2014.

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  1. @Rick. Yes, those darn activist judges usurping the people's wishes. For example, remember back in the mid-20th century when 90% of Americans thought it should stay illegal for white and black people to be married? Those darn activist judges in the Supreme Court deciding that white and black folks should have the right to get married! How dare they!

    Posted by: Chris | Jan 1, 2014 4:00:42 AM

  2. @SERIOUSLY: Actually, they did include Regenerus.

    Posted by: RWG | Jan 1, 2014 10:49:25 AM

  3. i love how they enlist minorities to be the faces of their hate statements. "look, I'm latino and I hate the gays too!"
    guess it's always good to have someone lower on the ladder to kick.

    Posted by: matt | Jan 1, 2014 11:38:20 AM

  4. The republicans just can't move forward try are so immobilized on this issue. They won't give up. They will continue to deny equality to people, ignore the poor, marginalize minorities and believe that intelligent design trumps proven evolution. No wonder the US is so eyed the rest of the world educationally. They should teach one course in their schools - Chinese. Its sad they putsch effort into fruitless activities. Move along people.

    Posted by: david from edmonton | Jan 1, 2014 2:37:53 PM

  5. @RICK speaking of, um, "activist judges", what say you about the most brazen display of judicial activism in U.S. history? You know, in 2000, when SCOTUS gave the election to G.W. Bush, in effect appointing Bush as POTUS?

    Posted by: jamal49 | Jan 1, 2014 2:52:49 PM

  6. mea culpa
    bubbly & mixed drinks
    paying the piper

    Posted by: SERIOUSLY | Jan 2, 2014 12:47:59 PM

  7. While Windsor didn't address the state restrictions and the 14th amendment, the reasoning didn't leave room for state prohibitions on equal treatment, no matter how popular:

    "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment"

    "Congress... cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
    ...the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
    The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from the Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." (Kennedy in Windsor)

    Posted by: Dan | Jan 2, 2014 8:29:27 PM

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