by Mike Andrew -
SGN Staff Writer
On Christmas Eve, the Tenth Circuit Court of Appeals refused for the third time to stop Gay and Lesbian couples from marrying in Utah after a federal judge struck down the state's ban on same-sex marriage.
Some 700 licenses have been issued to same-sex couples since U.S. District Judge Robert Shelby ruled on December 20 that Utah's ban on same-sex marriage violates the Fourteenth Amendment to the U.S. Constitution.
Although Salt Lake City is the Rome of the Mormon Church, Democratic Mayor Ralph Becker personally presided over some of the first weddings in the state.
Scouts from Salt Lake City's Troop 351, sponsored by the Jewish Federation of Utah, delivered pizza to county clerks and couples waiting in line for marriage licenses, leading online religion reporter Joanna Brooks to Tweet 'Utah. Boy scouts. Delivering pizzas. To support. Gay marriage. The. End.'
Scoutmaster Peter Brownstein, who replaced his standard-issue blue scout scarf with a rainbow one for the occasion, told CNN the delivery was 'meant to show what true Scouting values are - of thinking of others and helping others and not being selective about who you are helping.
'I still celebrated Hanukkah, not Christmas,' Brownstein continued, 'But this seems in the spirit of Christmas.'
Moudi Sbeity and Derek Kitchen, one of the plaintiff couples in the case, were driving home from the grocery store when their attorney called with the news. Sbeity said he was delighted that federal courts were siding with marriage equality.
'It seems like we win over and over again. This is crazy,' Sbeity said. 'This has been the best Christmas gift ever.'
The office of the Utah Attorney General asked Shelby to stay his ruling pending appeal, which would have blocked Gay and Lesbian couples from marrying, but he declined on December 23. The Tenth Circuit Court also declined on three separate occasions to stay Shelby's ruling - the latest being on December 24.
'Having considered the district court's decision and the parties' arguments concerning the stay factors, we conclude that a stay is not warranted,' Tenth Circuit Judges Jerome Holmes and Robert Bacharach wrote in an order signed by court clerk Elisabeth Shumaker for the court.
Holmes is a George W. Bush appointee, and is the first African American to serve on the Tenth Circuit. Bacharach was appointed by Obama.
The next, and final, step for the state would be to appeal for a stay to the U.S. Supreme Court, and the governor's spokesperson Ryan Bruckman said that the state would do just that.
'We're disappointed in the ruling, but we just have to take it to the next level,' Bruckman told Associated Press.
Supreme Court Justice Sonia Sotomayor supervises the Tenth Circuit, but if she declines to issue a stay, any other justice may do so.
The Attorney General's office had been expected to appeal to Justice Sotomayor on December 26, but a spokesperson said that 'the appeal may be delayed for a few days,' while the office consults with outside attorneys.
According to legal experts, delay may not be the best strategy for the state of Utah to take, however.
'The longer this goes on, the less likely it becomes that any court is going to entertain a stay,' University of Richmond law professor Carl Tobias told Associated Press. He said that Utah faces long odds to get their stay granted, considering that the Tenth Circuit has rejected it and marriages have been going on for days now.
Utah Governor Gary Herbert opposes marriage equality and has instructed the state's Attorney General to pursue an appeal in the case, but he also issued a letter advising state departments to comply with Shelby's ruling or consult with the Attorney General's office if they feel there is a conflict with other state laws.
In a similar advisory letter, the Utah Attorney General's office warned counties they could be held in contempt of federal court if they refuse to issue the licenses.
Initially, some county clerks were refusing to issue marriage licenses to same-sex couples, and the clerk of Utah County refused to issue any marriage licenses at all. But as of December 26, all but one of Utah's 29 counties are issuing same-sex marriage licenses. In that one county, the clerk is reportedly on vacation.
In the meantime, state agencies have begun trying to sort out how the newly-legal same-sex marriages may affect state services.
The Utah Department of Workforce Services, which administers social welfare and food stamps programs, is recognizing the marriages of Gay and Lesbian couples when they apply for benefits, spokesperson Nic Dunn told The Associated Press.
Charlie Roberts, a spokesperson for the Utah State Tax Commission, said the agency still needs to consult the attorney general's office about allowing same-sex couples to file joint state tax returns. They will be able to do so for their federal income taxes.
In a sweeping opinion that went beyond the U.S. Supreme Court's decision overturning DOMA in USA v. Windsor, Judge Shelby ruled on December 20 that 'Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law.
'The State's current laws deny its Gay and Lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.'
The judge then enjoined the state of Utah from enforcing any of its laws prohibiting same-sex marriage, touching off the rush to get a license and marry.
The Mormon Church, which has been one of the mainstays of opposition to marriage equality, issued a surprisingly moderate statement after the ruling:
'The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman and we are hopeful that this view will be validated by a higher court.'
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