Response to state’s motion to Supreme Court is delivered.

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Saying the state of Utah bears “an especially heavy burden” in its application to U.S. Justice Sonia Sotomayor for a stay of District Judge Robert Shelby’s ruling that Utah’s anti-gay marriage laws are unconstitutional, Restore Our Humanity’s attorneys conclude that the state has not met that burden.

The 40-page response (61 with attachments) was delivered this morning by the noon, Eastern Standard Time, deadline imposed by the justice.

There is no set timeline for Justice Sotomayor to rule on the stay application.

Attorney Peggy Tomsic, of Utah-based Magleby & Greenwood P.C., answered the state’s application, stating that the state “must show that the Court of Appeals was ‘demonstrably wrong in its application of accepted standards in deciding [whether] to issue the stay.'”

“They must also show that their rights ‘may be seriously and irreparably injured by the stay’. Finally, Applicants must show that this case ‘could, and very likely would, be reviewed here upon final disposition in the court of appeals’,” the response continues. “Because Applicants seek ‘an overriding stay’ in a case already pending before the Court of Appeals, they must meet ‘an especially heavy burden.'”

She wrote that the state never addressed the heightened burden in their application and that cases referenced only address “the usual stay application.”

Quoting a 1983 case, Tomsic wrote, “[A] stay application to a Circuit Justice on a matter before a court of appeals is rarely granted,” and another 1983 case, “in such a case the granting of a stay by a Circuit Justice should be extremely rare and great deference should be shown to the judgment of the Court of Appeals.”

The U.S. Court of Appeals, Tenth Circuit thrice denied the state’s motions to appeal the decision since Dec. 20, 2013. In its final ruling, the court said the state did not meet the burden of showing that the state would be irreparably harmed nor that it would likely win on appeal.

Tomsic also wrote that the state did not show that the district court was wrong in ruling that the state would not be irreparably harmed if a stay was not granted. “Instead of even attempting to meet that burden, Applicants merely reassert the same arguments that were properly rejected as inadequate by both the District Court and Court of Appeals.”

This is very similar to what Tomsic said when the state asked Judge Shelby to stay his own decision.

In its motion to Sotomayor, the state said that those who have been marrying since Shelby’s ruling would suffer harm if the state later invalidated those marriages. But the state even acknowledged that “it is by no means clear that such a ruling would require the State to seek or would result in the invalidation of the existing marriages,” Tomsic wrote.

“Should Applicants decide to challenge the validity of same-sex couples’ marriages if Applicants prevail on appeal, they can do so through the normal judicial process and will suffer no irreparable harm,” Tomsic wrote.

Tomsic also wrote that the state must show that this case will eventually get to the U.S. Supreme Court. There are about 30 similar cases making their ways through the court systems, a case in Nevada being the furthest along. The likelihood that the Court would decide to take the Utah case is not certain, Tomsic wrote.

Tomsic wrote that irreparable harm would actually happen if the Justice does issue the stay, saying that children of couples who are not able to marry would likely not be able to receive health and other benefits given only to married couples, that a couple unable to marry and a partner dies faces potential significant losses and that having to wait for the appeal to be decided on “imposes an intolerable and dehumanizing burden that no family should have to endure.”

There is no timeline in which Sotomayor must rule on the stay application.