UPDATE: Justice Sonia Sotomayor Ponders Utah Gay Marriage Case

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U.S. Supreme Court Justice Sonia Sotomayor is pondering whether to grant a stay of a federal district court’s order that the state of Utah stop enforcing its ban on marriage for same-sex couples.

The state’s new attorney general filed a petition Tuesday to the court to grant the emergency stay, after being denied a stay by both the federal district court and the Tenth Circuit U.S. Court of Appeals. Sotomayor is the justice designated to handle such requests from the Tenth Circuit.

Attorneys for the plaintiff couples filed their response brief today.

            Sotomayor can make a decision at any time on whether to grant a stay, or she can ask the full court to weigh in. If she refuses to grant the stay, Utah has the option of asking the full court to consider its request.

            Earlier this week, in another Tenth Circuit case, Sotomayor granted a temporary stay of a provision in the Affordable Care Act that requires employers providing health insurance, including certain religious-oriented employers, to cover birth control.

            In the same-sex marriage ban case, Utah Governor Gary Herbert and Attorney General Sean Reyes relied on the Supreme Court’s two marriage decisions last June. The request for a stay argues that the U.S. v. Windsor decision, striking the Defense of Marriage Act’s key provision, made clear that the federal government “cannot constitutionally disregard State laws allowing same-sex marriage.”

            But, says the state, the federal district court decision in Kitchen v. Herbert exercised “an outright abrogation” of the state’s definition of marriage.

            The Utah brief calls each same-sex marriage in Utah “an affront” to the state and its citizens’ ability to define marriage “through ordinary democratic channels.” It argues that a stay is necessary to “minimize the enormous disruption” that might be caused by “potentially having to ‘unwind’ thousands more same-sex marriages….”

            The response brief for plaintiff couples, Peggy Tomsic and James Magleby, says a stay of the district court decision would impose “an intolerable and dehumanizing burden that no family should have to endure.”

            Utah voters adopted the ban on same-sex marriage and any other form of same-sex relationship in 2004 through a ballot measure known as Amendment 3 to the state constitution. Two other statutes enforce that ban. On December 20, in a lawsuit brought by private attorneys, U.S. District Court Judge Robert Shelby declared the ban unconstitutional.

            In making its case for a stay, Utah’s brief said the question presented by Kitchen is “the same question” presented by last session’s Proposition 8 case. But unlike Hollingsworth v. Perry, said the Utah brief, the Kitchen case presents no questions concerning legal standing. Last June, the Supreme Court declined to rule on the constitutionality of California’s voter-approved ban on same-sex marriage because the party appealing the case lacked legal standing to do so.

            Meanwhile, the Utah legislature is preparing to take up yet another constitutional amendment –one to specify that churches cannot be made to host same-sex marriage ceremonies in violation of their religious views. There seems to be less controversy surrounding this new ban. Openly gay State Senator Jim Debakis told the Salt Lake City Tribune that he doesn’t know of anybody who wants to force churches to perform ceremonies against their beliefs. The legislature convenes January 27.

            Local papers have reported that between 700 and 900 marriage licenses have been issued to same-sex couples since the December 20 order barring further enforcement of Amendment 3.

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