Plaintiffs Submit Response to Sotomayor Opposing Request for Halt to Same-Sex Marriages

Supreme Court Justice Sonia Sotomayor has received response from the plaintiffs representing three couples challenging Utah's ban on same-sex marriage to a brief filed by the state on Tuesday urging a halt to gay marriages pending the state's appeal of a case striking down the ban.

SotomayorSotomayor, who had set a noon deadline Friday for the plaintiffs' response, will now rule on her own or ask the full Court to weigh in.

The Salt Lake Tribune reports:

This is the state’s fifth attempt to get the order stayed. Shelby denied it once, and the 10th Circuit Court of Appeals in Denver turned down the state’s stay request three times. Both courts held that the state’s likelihood of prevailing on appeal was unlikely, the plaintiffs’ attorneys said.

The 10th Circuit Court of Appeals, however, agreed to review the case itself on an expedited basis. Filings are due in the case by the end of February, after which the court will take it under consideration…

…Magleby and Tomsic say Shelby determined that in previous rulings the U.S. Supreme Court recognized the freedom to marry as a fundamental right based on individual rights to liberty, privacy and freedom of assocation — rights that under the Fourteenth Amendment take precedence over states’ rights when there is a conflict between the two. Shelby also found the state did not present even a rational basis, the lowest standard of review, for denying same-sex couples’ right to marry, they said.

In a column posted yesterday, our legal analyst Ari Ezra Waldman argues why there should be no stay of marriage equality in Utah.

Read the brief below:

13A687 #3 Plaintiffs' Opposition to Stay by Equality Case Files


  1. Jerry says

    “Applicants’ argument that this Court should issue a stay because same-sex couples and their children may suffer “dignitary and financial losses from the invalidation of their marriages,” cuts entirely the other way. Applicants cannot simultaneously concede that being stripped of one’s marital status causes profound, irreparable harm and urge the Court to inflict that very injury on the married Respondents and other married same-sex couples.” There’s no way Utah can prevail, and I look forward to the 10th District Court’s expedited decision, which is sure to bring marriage equality to the entire 10th District!

  2. Lexis says

    It’s ludicrous that the opposing side is using “the dintitary and financial loss argument,” since they’re the one’s causing the dignitary and financial loss to begin with. And regardless of what happens with the stay, my guess would be that any marriages that have already occurred will be deemed valid and legal, since they were done under the order of a court of law, not some public official or rogue county clerk. They will be like the marriages that occurred in California during the window of opportunity prior to the passage of Prop H8. – jmho

  3. Bob says

    If you want to see the comments on the other Salt Lake paper — the one owned by the church of the morholes — check out the Deseret News.

    The editors came up with some pretty stretched arguments, but some of the comments are priceless: did you know that there was a Gay conspiracy to assign folks to comment? Did you know that the purpose of the Gays is not equality, but to destroy the morhole church?

  4. simon says

    The New Jersey Supreme Court denied Christie’s request for a stay. The ruling says:
    “the state has advanced a number of arguments, but none of them overcome this reality: Same-sex couples who cannot marry are not treated equally under the law today.” The ruling also denied request for stay due to the fact that the court could “find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds.”

  5. Dan says

    I think Justice Kennedy made it clear how he feels about the 14th amendment argument in Windsor:

    “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)

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