The Attorney General of Utah filed an application with the U.S. Supreme Court Tuesday night asking the court to suspend same-sex marriages from going forward while the state appeals a district court ruling that struck Utah's ban on same-sex marriage.
The application was directed to Justice Sonia Sotomayor, who has jurisdiction over the 10th Circuit Court of Appeals. She can act on the application alone, or refer it to the full court.
In court papers, Utah Attorney General Sean D. Reyes said that putting the lower court ruling on hold is "urgently needed" because since the ruling numerous same-sex marriages have taken place. Reyes said that each marriage "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 this court's unique role as final arbiter of the profoundly important question" regarding gay marriage.
On Dec. 20, U.S. District Judge Robert J. Shelby concluded that Utah's prohibition on same-sex marriage was unconstitutional, and he refused to stay his ruling pending appeal. As a result county clerks have issued hundreds of licenses over the past several days. A federal appeals court also refused to grant a stay.
In tonight's court filing, Reyes argued that if the federal appeals court - which is set to hear an appeal of the case in late January - ultimately agreed with Shelby then there was a "strong likelihood" that the Supreme Court would want to review the case.
He said a stay should be granted "to minimize the enormous disruption to the state and its citizens of potentially having to "unwind" thousands more same-sex marriages" should the Supreme Court ultimately conclude that the district court's judgment was wrong.
The lower court's ruling, Reyes argued, "imposes certain - not merely likely - irreparable harm on the state and its citizens." He wrote, "Each such marriage openly flouts the state's sovereign interest in controlling the marital status of persons domiciled within its borders, based on the unreviewed judgment of a single district court."
Reyes was joined on the brief by Utah's Gov. Gary R. Herbert and Monte Neil Stewart, and outside counsel hired to handle the appeal.
"In general, the state's application simply restates all the same arguments that the State presented to the district court and the court of appeals.," said Clifford Rosky, a professor of law at the University of Utah.
"They were already rejected by both courts, and I expect them to be rejected by Justice Sotomayor or the full court."
Rosky will be filing a brief in the appeals court in support of the plaintiffs on behalf of Equality Utah and the Utah Pride Center.
Fordham law professor Elizabeth Cooper agrees with Rosky. "Hundreds of same-sex couples in Utah already have gotten married; if more marry, it really will not create greater harm," Cooper said. "Rather, it just makes sense from the perspective of court jurisprudence to let the matter be heard on the merits by the 10th Circuit Court of Appeals. After that, either or both sides are likely to petition the Court for certiorari."
It is unclear when the Supreme Court will act. Sotomayor is scheduled to be at Times Square New Year's Eve to participate in the countdown to the new year.