Utah eyes U.S. Supreme Court in battle against same-sex marriage

Dec. 4, 2013 file photo shows Derek Kitchen, left, and his partner, Moudi Sbeity, following court session in Salt Lake City in which a federal judge heard arguments on a challenge to Utah's same-sex marriage ban by three gay couples; the ban was struck down on Dec. 20, 2013

SALT LAKE CITY -- A federal appeals court has refused yet again to stop same-sex 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 same-sex marriage on hold marked yet another legal setback for the state. Utah lawyers have repeatedly struck out in their bid to block same-sex 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 same-sex 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 the marriages have been going on for days now.

"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 Friday to strike down a 2004 voter-approved same-sex marriage ban sent same-sex couples rushing to county clerk offices to get marriage licenses. About 700 same-sex couples have obtained licenses since Friday, with most of the activity in Salt Lake City.

The federal judge surprised one of the most conservative states in the U.S. with his ruling that the ban violates gay and lesbian couples' constitutional rights.

On Monday, he denied a request by Utah to stop same-sex marriages until the appeals process plays out.

The frenzy has put Utah at the center of the national debate on same-sex marriage, given the state's long-standing opposition to same-sex weddings and its position as headquarters of the Mormon church. Utah became the 18th state where same-sex couples can wed.

The appeals court said in its short ruling Tuesday that a decision to put same-sex 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 same-sex 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 same-sex 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 same-sex couples when they apply for benefits, spokesman Nic Dunn told The Associated Press on Tuesday.

It's unclear whether Utah will allow married same-sex couples to jointly file their state income tax returns next year, as they will be able to do for federal returns.

Charlie Roberts, a spokesman for the Utah State Tax Commission, said the agency still needs to consult the Utah attorney general's office about the issue.

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.

The Mormon church – also known as The Church of Jesus Christ of Latter-day Saints – was one of the leading forces behind California's short-lived ban on same-sex marriage.

The Church of Jesus Christ of Latter-day Saints has said it stands by its support for "traditional marriage" and that it hopes a higher court validates its belief that marriage is between a man and woman.