Saying the 10th Circuit Court of Appeals was clear when it said, “Requests for extension of time are very strongly discouraged, and will be considered only under extraordinary circumstances,” attorneys for the plaintiffs in the Utah same-sex marriage case, Kitchen v. Herbert, are asking the court to reject a 10-day extension to the state.
On Friday, the day after Utah Attorney General Sean Reyes announced that the state would hire three outside lawyers to run their appeal of District Judge Robert Shelby’s ruling that Utah’s anti-gay marriage laws and constitutional Amendment 3 violated the U.S. Constitution, the state sent a request for a 10-day extension in the expedited appeal.
“There are no extraordinary circumstances here,” Attorney Peggy Tomsic wrote in the response. “Granting of the Motion will result in a schedule giving the State Defendants more time (by one day) to file their brief than is ordinarily provided under the Federal Rules of Appellate Procedure. Such a result would run contrary to this Court’s earlier determination that the briefing in this case should be expedited.”
Tomsic said that the plaintiff couples, along with over 1,300 couples who were married in the 17 days following Shelby’s ruling before the U.S> Supreme Court ordered a stay of the ruling, are experiencing “immediate and irreparable injury” each day the appeal continues.
The reply says that state attorneys “essentially ask this Court to bend the rules for them,” which does not “contribute to the ‘orderly’ disposition of this case of great public importance.”
In its request, state’s lawyers pointed to the Supreme Court’s order of a stay on the ruling during the appeal was evidence the Court may take he case up at a later date and is showing interest in the case.
Tomsic said the state’s reliance on the Court’s issuance of a stay is “misguided.”
“The Supreme Court did not provide any reasons for its issuance of a stay, and there may not have been concurrence by a majority of Justices in any particular reason for the stay,” she wrote.
Tomsic also said that the expansion of Utah’s legal team should not be considered a reason to extend the briefing period.
“The Utah Attorney General’s office fully defended this case in the District Court and will be limited on appeal to arguments that it preserved in the District Court,” she wrote.
She added that one reason the circuit court denied a state motion for a stay of Shelby’s ruling was because the court was granting the state’s request for an expedited appeal.
“The State Defendants therefore had no reasonable basis to delay work on their opening brief while they searched outside the state of Utah for help in defending the challenged state measures,” Tomsic wrote, adding that the state hasn’t shown why the new team still lacks sufficient time to file the brief, which is due Monday, Jan. 27.
Tomsic wrote that the state determined on its own to hire outside counsel, and that decision is not extraordinary.
Tomsic also wrote that the similar recent ruling on a case in Oklahoma is, in fact, different than Utah’s, in that the Utah case rules on the question of recognition of a marriage performed in another state, while the Oklahoma ruling does not. The Utah case also only addresses the laws of the state of Utah, which differ from Oklahoma, and the Oklahoma case also involves the federal government, which Utah’s case does not.
“The scheduling preferences of the State Defendants pale in comparison to the real and continuing harms that Plaintiffs and other same-sex couples and families are experiencing in Utah while this appeal continues,” Tomsic continues. She quotes a release by Reyes, in which he says the position that the married couple find themselves in is “very difficult” and “untenable.”
Referencing U.S. Attorney General Eric Holder’s decision that the federal government would recognize the same-sex marriages performed before the stay, Tomsic ends the reply saying that the federal government recognizes that “[t]hese families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”
A decision is expected in the next few days on the state’s request, likely as early as Monday.