Earlier today attorneys for the State of Utah filed a motion with the Supreme Court of the United States requesting a stay of execution in the recent ruling of Judge Robert Shelby in the Kitchen v. Herbert case.
The motion was directed to Justice Sonia Sotomayer, who oversees the 10th Circuit Court of Appeals. Both Judge Shelby and the 10th Circuit have rejected four such stay requests since Shelby’s ruling on December 20th, which lifted Utah’s prohibition on same-sex marriages.
The motion lists Monte Neil Stewart and Craig G. Taylor of the Boise firm of Stewart, Taylor & Morris as “counsel of record” and “Special Assistant Attorneys General” for the state. It has been reported through several media outlets that Stewart, a former U.S. Attorney, has consulted with the Attorney General’s office throughout the course of this case. When contacted for comment last week, however, a spokesman for the AG’s office refused to comment on the level of involvement outside counsel might have in this case. A request for further information, filed under the Government Records Access and Management Act (GRAMA) by QSaltLake has yet to receive a response.
The state seeks an immediate stay, claiming that “As a result of the district court’s injunction, numerous same-sex marriages are now occurring every day in Utah. And each one is an affront not only to the interests of the State and its citizens in being able to define marriage through ordinary democratic channels…”
The motion argues that irreparable harm is being done to the State’s sovereignty on a daily basis, as the district and circuit courts have overruled a measure passed by a majority of voters. They cite a 1977 case, New Motor Vehicle Bd. v. Orrin W. Fox Co., in which Justice Rehnquist, then a circuit court judge, ruled that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.”
The plaintiffs’ attorneys have until 12 pm EST Friday, Jan. 3, to respond to the state’s motion. Restore Our Humanity Director Mark Lawrence confirmed to QSaltLake that it is likely the response will be filed well in advance of the court’s deadline.
Sotomayor can reject the application outright or refer the case to the entire court. If she rejects the application, the state could ask another of the justices to act. There is no set time by which Sotomayor is required to act.
The 100+ pages of the motion and included appendices can be read here.