Utah same-sex marriage case to Tenth Circuit (UPDATED)

UPDATED 11:50 p.m.  The same-sex couples who challenged the Utah ban have now filed their response to the state’s request for delay by the Tenth Circuit.  The filing is here.  Appendix A — Judge Shelby’s order denying a stay request in the district court — is here.  Appendix B — the transcript of the Monday hearing in Judge Shelby’s court — is here.

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State officials in Utah asked the Tenth Circuit on Monday to delay same-sex marriages in the state, arguing that a Salt Lake City judge was wrong in striking down a voter-approved ban on those marriages.  The move came after U.S. District Judge Robert J. Shelby refused to delay his own ruling.

The court of appeals had turned down two earlier pleas for delay by the state, before the judge had refused a postponement.  The Tenth Circuit said those moves were procedurally improper.  The latest motion appeared to fill in the blanks the court of appeals had found in the earlier filings.

Neither the Tenth Circuit nor the Supreme Court has ruled on a state’s power to forbid same-sex marriages, the state pointed out, so “Utah should be allowed to enforce its democratically chosen definition of marriage until the appropriate appellate court of last resort has declared otherwise.”

“At the very least,” the motion added, “this [Circuit] Court will have its say and it is widely expected that the United States Supreme Court will ultimately resolve the issue.”

Judge Shelby had put his ruling into effect immediately, and some same-sex couples are beginning to seek marriage licenses and go forward with marriage, the state said.

The state argued that its challenge to the ruling has “a real likelihood of success on the merits, given the number of other courts that have held the traditional definition of marriage is rationally related to a legitimate state interest.”

The same-sex couples who won their case against the ban in Judge Shelby’s court notified the Tenth Circuit that they would oppose the state’s new move, in a filing later Monday.