James E. Magleby and Peggy A. Tomsic, the attorneys, said in a filing the issues raised have already been rejected by two lower courts and added the 10th U.S. Circuit Court of Appeals has set an expedited hearing schedule to review the state's appeal, making a stay unnecessary.
U.S. District Judge Robert J. Shelby ruled Dec. 10 the state's ban violated the due process and equal protection provisions of the 14th amendment. Since then, 1,000 same-sex couples have married in Utah, the Salt Lake Tribune said Friday.
The Supreme Court request is the state's fifth attempt to get the order stayed. Shelby denied it once, and the 10th Circuit turned it down three times.
Both courts held the likelihood of the state prevailing on appeal was slim, the plaintiffs' attorneys said.
In the latest stay request, filed Dec. 27, the state said the case presents a question left open in its decision in U.S. vs. Windsor, whether states may bar same-sex couples from civil marriage and refuse to recognize marriages performed in other states. In that decision, the Supreme Court struck down a provision in the federal Defense of Marriage Act that barred same-sex couples from receipt of federal benefits even in states where they were legally married.
That finding, Utah claims, preserves state authority to define and regulate marriage.
Magleby and Tomsic argue to the court did not rely on federal authority in its decision but rather on due process rights guaranteed by the Constitution, noting state marriage laws must pass constitutional scrutiny.
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