With the days ticking until Utah is forced by a ruling by District Judge Dale A. Kimball to recognize the over 1,300 same-sex marriages performed in Utah in late December and early January, Utah Attorney General Sean Reyes filed a motion with the U.S. Supreme Court to put a hold on the ruling.
“To the Honorable Sonia Sotomayor, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Tenth Circuit: Applicants Gary R. Herbert, Governor of Utah, and Sean D. Reyes, Attorney General of Utah, respectfully apply for an emergency stay pending appeal of a preliminary injunction entered by the United States District Court for the District of Utah.”
Both the district court and the Tenth Circuit have denied the state’s requests for a full stay pending appeal, though
the Tenth Circuit granted a temporary stay that will expire at 10:00 a.m. EDT on Monday, July 21.
Reyes writes in the application that a suit filed on behalf of four couples married in the state during the time between Judge Robert Shelby’s Dec. 20 ruling that Utah’s Amendment 3 was unconstitutional and the U.S. Supreme Court’s granting of that ruling 17 days later is an attempt at “circumvention” of the Supreme Court’s stay “that has burdensome regulatory implications and irreparable consequences for the state of Utah.”
Judge Kimball’s ruling stated that marriages performed while marriage was legal in the state must be recognized by the state, even as the Kitchen v. Herbert case is being appealed.
“But no federal court has ever held that a plaintiff can acquire vested rights as a result of an unstayed, non-final district court order, because such a rule creates an end-run around the normal appellate process and largely innoculates (sp) the unstayed, non-final decision from effective appellate review,” the application reads.
“This case thus presents an extremely important question of both federalism and federal procedure, a question that is closely related to, but distinct from, the question this Court will soon be asked to address in Kitchen,” the application continues. “That question is whether a federal district court is authorized to create private rights that vest against a state by issuing a non-final order commanding state officials to perform a ministerial act (in this case, granting a marriage license) and then refusing to stay that order pending appeal.”
The state notes that several of the couples have applied for adoptions since being legally married.
“[T]he Utah Department of Health, Office of Vital Statistics received four orders from State district court judges requiring the Department to issue amended birth certificates identifying the same-sex couple as parents of the child on the certificate,” the application said.
The Utah Supreme Court on May 16 ordered that all state court proceedings be stayed, including two “show cause” orders to the Utah Attorney General’s office and the Utah Dept. of Health asking why they should not be held in contempt for failure to comply with the adoption orders.
In Kimball’s decision not to stay his decision, he wrote that, “Whether or not Kitchen is ultimately upheld, … Utah’s marriage bans were a legal nullity until the Supreme Court issued the Stay Order on January 6, 2014.” That is to say that the laws against same-sex marriage did not exist for the 17 days between the ruling and the Supreme Court’s stay.
Throughout the application, Reyes calls Judge Shelby’s order a “non-final” decision at least 27 times.
“In short, the district court held that a lone federal district court judge is authorized to create private rights that vest against a state by issuing a non-final order commanding state officials to perform a ministerial act (in this case, issuing a marriage license) and then refusing to stay that order pending appeal. The court cited no direct authority for the proposition that a federal district judge possesses such a sweeping and novel power.”
The application asks Justice Sotomayor to stay Kimball’s ruling through the appeal of both Kitchen and Evans, and asks for a review by the full Supreme Court should Sotomayor not grant the stay.