Attorneys for same-sex couples say Utah officials who want to block gay marriages “cannot meet their burden” of showing either an error by a lower court or serious damage if the ceremonies continue, according to papers filed with the Supreme Court Friday. The filing urges the court to deny a request to halt the unions in Utah.
The couples’ response comes three days after Utah officials asked Justice Sonia Sotomayor to block same-sex marriages in the state. Last month, a federal district court invalidated Utah’s ban on gay marriage, saying it is not constitutional. Utah is appealing that ruling.
The state’s request for an emergency delay was directed to Sotomayor, who handles such requests from that section of the United States. On Tuesday, Sotomayor called for a response from the couples’ legal teams by noon today.
“Utah officials wants an emergency stay so that county clerks in the conservative and predominately Mormon state can refuse to issue marriage licenses to same-sex couples,” NPR’s Howard Berkes reports for our Newscast unit. “The state argues that children generally fare best when raised by heterosexual parents. The same-sex couples who challenged Utah’s law counter that professional psychological organizations disagree. Both sides claim irreparable harm if the court rules against them.”
In the weeks since the federal court set aside Utah’s ban, hundreds of gay and lesbian couples have secured marriage licenses.
As we reported earlier this week, the request for a stay from Utah Attorney General Sean Reyes calls gay marriages “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.”
Utah’s voters endorsed a definition of marriage as being a union between one man and one woman in 2004.
Today, lawyers for three same-sex couples who challenged the ban said the state had offered no compelling reasons for a delay in its filing, as The Salt Lake Tribune reports. And they noted that a hearing on the state’s appeal is due to be held in February.
The filing also notes that one of the original plaintiffs in the case, Kate Call, “is suffering from a terminal illness that may very well prevent her from surviving the instant appeal.”
The document concludes, “Forcing same-sex couples and their families to wait and hope for the best during the pendency of this appeal imposes an intolerable and dehumanizing burden that no family should have to endure.”
As for what happens next in the case, it’s not precisely clear. Sotomayor could act on her own or take the issue to her colleagues.
“The usual tradition and practice in this type of high-profile, controversial case is for the circuit justice, in this case Justice Sotomayor, to refer the request over to the entire court,” law professor Carl Tobias of the University of Richmond tells Howard.
Tobias says that although Sotomayor may act alone, he thinks she’ll probably refer the request to the whole court.