Nearly two weeks after Judge Richard Shelby declared Utah’s law banning same-sex marriage unconstitutional, and more than a week after requests for a stay were denied by both Judge Shelby and the 10th Circuit, the State of Utah has finally filed a request for a stay with the Supreme Court:
Utah on Tuesday asked the Supreme Court to stay a decision by a federal judge that found the state’s ban on same-sex marriages unconstitutional and to stop the unions that have been occurring since the ruling.
The state’s request for a delay was turned down by U.S. District Judge Robert J. Shelby following his Dec. 20 decision, and the U.S. Court of Appeals for the 1oth Circuit in Denver three times turned down the state’s request.
Shelby’s decision that Utah’s state constitutional amendment banning same-sex marriage, approved by voters in 2004, was in violation of the federal guarantee of equal protection, has caused a record-breaking number of marriages in the state.
Each one, the state said in its petition, “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 the Supreme Court.
Lyle Denniston comments:
The state’s argument is based upon the premise that gay and lesbian couples are not seeking to share in a constitutional right that already exists and is open to other couples — the right to marry — but rather are attempting to create an entirely new right without a constitutional amendment or a definitive, final ruling in the courts.
Judge Shelby has not conceded that premise, actually concluding that the right to marry is and long has been a fundamental right, and that excluding same-sex couples violates their right to legal equality and to make their own choices about their personal lives.
The case goes to Justice Sonia Sotomayor, who may either rule on the application herself, or refer to the full Court for consideration. In either case, I wouldn’t expect a ruling until Thursday at the earliest, and likely not until Friday or beyond.
Here’s the Application for a stay:
