Following the 10th Circuit’s refusal to stay a federal judge’s decision legalizing gay marriage in Utah, the state’s attorney general has asked Justice Sonia Sotomayor—who oversees 10th Circuit cases—to halt all gay marriages while the state appeals. Around 900 same-sex couples have married since the federal judge’s decision on December 20, although those unions will be imperiled if the decision is reversed.
The state’s request to the 10th Circuit to stay the marriages was widely expected to succeed, and the Utah attorney general now appears to be struggling to find lawyers qualified to take on the case. On Tuesday afternoon, the office’s official Twitter account sent out a plea for “outside counsel on [the] same-sex marriage case,” and the attorney general took much longer than anticipated to present his case to Sotomayor. The state was clearly caught off guard by the ruling, and its complaint largely rehashes a number of arguments roundly rejected by the court in Windsor. From USA Today:
“Numerous same-sex marriages are now occurring every day in Utah,” Utah lawyers complain in the filing. “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, but also to this court’s unique role as final arbiter.”
Utah repeatedly stressed that states have the authority to define marriage as between a man and woman. “That states have a powerful interest in controlling the definition of marriage within their borders is indisputable,” Utah said in the filing.
The attorney general also leaned heavily on the “responsible procreation” argument, a thoroughly debunked defense which the Supreme Court really, really didn’t like:
“On average children navigate developmental stages more easily, perform better academically, have fewer emotional disorders and become better functioning adults when reared in that environment,” the pleading says.
Sotomayor has asked for legal briefs from same-sex couples fighting to uphold the federal judge’s decision; she is expected to rule on the stay next week. When she does, she has the option of deciding the issue herself, or referring the case to the court as a whole.
