In its application, Utah said a stay is warranted because the dispute over U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling "squarely presents the question that this court expressly left open last term in United States v. Windsor." That is: Do states retain a "historical and essential" authority to define the marital relation? In the Windsor case, the court upheld a state’s authority to make laws regarding marriage, Utah argues.
"By contrast, this case involves not just a refusal by the federal government to accommodate a state’s definition of marriage, but an outright abrogation of such a definition," the state said.
Shelby ruled that Amendment 3 to Utah’s constitution, approved by 66 percent of voters in 2004, and two related state laws violated due process and equal protection rights of same-sex couples by denying them the right to civil marriage.
Monte N. Stewart, a Boise attorney and founder of the Marriage Law Foundation, joined the Utah Attorney General’s Office in making the application — the state’s fifth attempt to block same-sex marriage in Utah while it appeals Shelby’s ruling. It also posted a notice Tuesday seeking an outside firm’s help.
Attorney James E. Magleby, who with Peggy A. Tomsic represents the three couples that challenged Utah’s ban, criticized the state’s continued push for a stay, particularly given the 10th Circuit Court of Appeals expedited schedule to hear the case.
"We are disappointed that the state of Utah will spend millions of dollars in taxpayers’ money to attempt to reinstate laws which deny due process and equal protection to all of Utah’s citizens," Magleby said in a statement. "It doesn’t have to be this way."