Utah seeks to restore law banning same-sex marriage

WASHINGTON – With an emergency appeal filed Tuesday by Utah, the U.S. Supreme Court is again facing a difficult decision on whether gays and lesbians have a constitutional right to marry – a question the justices carefully dodged last year.

Utah’s attorney general is asking the Supreme Court to issue an emergency stay to restore a state law banning same-sex marriage that was struck down a week and a half ago by a U.S. District Court judge. Since then, hundreds of gay and lesbian couples in Utah have rushed to marry.

The Supreme Court has not been asked to rule on the topic since issuing two landmark rulings in June, and its response could have nationwide implications for the future of gay marriage.

In considering Utah’s request for a stay, justices are in effect being asked to make a quick assessment of the state’s claim that its ban on same-sex marriage is likely to be upheld as constitutional in the end.

In its filing, Utah’s state attorney argued there “is a strong likelihood the district judge’s decision will be overturned” and that the state is suffering an “irreparable harm” each day.

If at least five justices side with Utah, it might be a sign that a majority is not yet ready to uphold gay marriage as a constitutional right. If they reject Utah’s request, even in a one-line order, the decision could signal that the court is moving toward making same-sex marriage legal nationwide.

U.S. District Judge Robert Shelby, an Obama appointee in Utah, ruled in favor of gay marriage Dec. 20 when he struck down a provision of the state’s constitution defining marriage as a union between a man and a woman. He refused the state’s request to put his decision on hold, clearing the way for hundreds of same-sex couples to rush to get married over the last two weeks.

The 10th U.S. Circuit Court of Appeals in Denver, to Utah’s surprise, refused to issue an order putting the judge’s ruling on hold. That prompted the state’s attorney to seek intervention from the Supreme Court.

The appeal was lodged with Justice Sonia Sotomayor, who oversees emergency appeals from the region. She asked for a response by Friday from attorneys for gay couples in Utah who had sued to overturn the state law.

Last year’s Supreme Court rulings on same-sex marriage did not settle the question of whether gay marriage is a constitutional right.

In a 5-4 ruling in late June, the justices struck down part of the federal Defense of Marriage Act and ruled that legally married same-sex couples were entitled to equal benefits under the law. But in a second 5-4 ruling, they relied on procedural grounds to throw out an appeal involving California’s Proposition 8, a decision that had the legal effect of invalidating California’s same-sex marriage ban without establishing a new constitutional right for gays and lesbians nationwide.