Another court defeat for Utah on gay marriage

SALT LAKE CITY – A federal appeals court has refused to stop gay marriage in Utah, making it more likely that same-sex weddings in the home of the Mormon church are here to stay for the immediate future.

The 10th U.S. Circuit Court of Appeals’ rejection of Utah’s request for an emergency order to put gay marriage on hold on Tuesday marked yet another legal setback for the state. Utah lawyers have repeatedly failed in their bid to block gay marriage, getting rejected on four occasions in recent days.

Utah’s last chance to temporarily stop the marriages would be a long-shot request before the U.S. Supreme Court. That’s what the Utah Attorney General’s Office is prepared to do, spokesman Ryan Bruckman said. Gov. Gary Herbert’s office declined to comment on the decision.

“We’re disappointed in the ruling, but we just have to take it to the next level,” Bruckman said.

Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage, said he expects the U.S. Supreme Court to make a decision by Friday. He thinks Utah faces long odds to get their stay granted, considering two courts have already rejected it and marriages have been going on for days now in one of the most conservative U.S. states.

“The longer this goes on, the less likely it becomes that any court is going to entertain a stay,” Tobias said.

Judge Robert J. Shelby’s decision last week to strike down a 2004 voter-approved gay marriage ban sent gay couples rushing to county clerk offices to get marriage licenses. About 700 gay couples have obtained licenses since Friday, with most of the activity in Salt Lake City.

The frenzy has put Utah at the centre of the national debate on gay marriage given the state’s long-standing opposition to same-sex weddings and its position as headquarters for the Mormon church. It made Utah the 18th state where gay couples can wed.

It is estimated that nearly two-thirds of Utah’s 2.8 million residents are members of The Church of Jesus Christ of Latter-day Saints, and Mormons dominate the state’s legal and political circles.

The Mormon church was one of the leading forces behind California’s short-lived ban on same-sex marriage, Proposition 8, which voters approved in 2008, only to have it struck down in the federal courts for violating the constitutional rights of gays and lesbians. The church said Friday it stands by its support for “traditional marriage” and hopes a higher court validates its belief that marriage is between a man and woman.

The appeals court said in its short ruling Tuesday that a decision to put gay marriage on hold was not warranted, but said it put the case on the fast track for a full appeal of the ruling.

One of the couples that brought the case, Moudi Sbeity and Derek Kitchen, were driving home from the grocery store when their attorney called with the good news. Sbeity said it’s wonderful that multiple levels of courts are making it clear that there’s no room for discrimination.

“It seems like we win over and over again. This is crazy,” Sbeity said. “This has been the best Christmas gift ever.”

Shelby’s ruling has created a confusing set of circumstances for county clerks, same-sex couples and state officials as they wait on an appeals court to bring some clarity to the issue.

Some county clerks were refusing to issue marriage licenses to gay couples, even though they could face legal consequences.

The Utah attorney general’s office warned counties they could be held in contempt of federal court if they refuse to issue the licenses.

In the meantime, state agencies have begun trying to sort out how the gay marriages may affect state services.

Herbert’s office sent a letter to state agencies Tuesday afternoon advising them to comply with the judge’s ruling or consult the Utah attorney general’s office if the ruling conflicts with other laws or rules.

The Utah Department of Workforce Services, which administers programs such as food stamps and welfare, is recognizing the marriages of gay couples when they apply for benefits, spokesman Nic Dunn told The Associated Press on Tuesday.

In court Monday, Utah lawyer Philip Lott described the scenario unfolding in Utah as a “chaotic situation.” He urged the judge to “take a more orderly approach than the current frenzy.”

“Until the final word has been spoken by this Court or the Supreme Court on the constitutionality of Utah’s marriage laws, Utah should not be required to enforce Judge Shelby’s view of a new and fundamentally different definition of marriage,” the state said in the motion to the appeals court.

___

Associated Press writer Michelle Price contributed to this report.