U.S. Supreme Court

Utah asks SCOTUS to stay ruling allowing same-sex marriages; a 'subtle shift' in arguments?


Utah’s attorney general has asked the U.S. Supreme Court for a stay of a judge’s ruling striking down the state ban on same-sex marriages.

Justice Sonia Sotomayor, who oversees emergency appeals for the region, has asked for a response by noon Friday from lawyers who challenged the law, report SCOTUSblog and the Los Angeles Times.

U.S. District Judge Robert Shelby had refused to stay his Dec. 20 ruling striking down the gay-marriage ban, and the Denver-based 10th U.S. Circuit Court of Appeals also refused a stay. The ban was adopted by voters as a state constitutional amendment in 2004, and is part of two associated statutes.

The state made “a subtle shift in arguments” in its application for a stay (PDF), the Salt Lake Tribune reports. “Gone is any mention of procreation,” the story says.

Instead, Utah says state lawmakers and voters had a rational basis for the marriage ban because of a “large and growing body of social science research” suggesting that children do best when raised by a father and mother. “And even when contravened by other evidence,” the state argues, voters and lawmakers “are not subject to second-guessing by the judiciary without a showing that no rational person could believe them.”

The application says several same-sex marriages are occurring every day in Utah following Shelby’s ruling. “And each one is an affront not only to the interests of the state and its citizens in being able to define marriage through normal democratic channels,” the state writes, “but also to this court’s unique role as final arbiter of the profoundly important constitutional question.”

Hat tip to How Appealing.

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