Judge allows gay marriage in Utah to continue

AP Photo/Deseret News

A federal judge on Monday allowed gay marriage to continue in Utah, rejecting a request to put same-sex weddings on hold as the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses.

Judge Robert J. Shelby overturned Utah's ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples' constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Lawyers for the state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold.

More than 200 gay couples have obtained marriage licenses since Friday in Utah's most populous county. On Monday, an estimated 100 licenses were issued in other counties, while some clerks shut their doors as they awaited Shelby's decision.

Couples began lining up Sunday night at the Salt Lake County clerk's office as they hoped to get licenses amid the uncertainty of the pending ruling. They anxiously eyed their cellphones for news on the decision, and a loud cheer erupted once word spread that Shelby wouldn't be blocking weddings.

Shelby's decision to overturn Utah's same-sex marriage ban has drawn attention given the state's long-standing opposition to gay marriage and its position as headquarters for the Mormon church. The gay weddings in Salt Lake City were taking place about 3 miles from church headquarters.

For now, a state considered one of the nation's most conservative has become the 18th to allow same-sex couples to legally wed, joining the likes of California and New York.

It's estimated that nearly two-thirds of Utah's 2.8 million residents are members of The Church of Jesus Christ of Latter-day Saints, and Mormons dominate the state's legal and political circles.

The Mormon church was one of the leading forces behind California's short-lived ban on same-sex marriage, Proposition 8, which voters approved in 2008. The church said Friday it stands by its support for “traditional marriage,” and it hopes a higher court validates its belief that marriage is between a man and woman.

In court Monday, Utah lawyer Philip Lott repeated the words “chaotic situation” to describe what has been happening in Utah since clerks started allowing gay weddings. He urged the judge to “take a more orderly approach than the current frenzy.”

“Utah should be allowed to follow its Democratically chosen definition of marriage,” he said of the 2004 gay marriage ban.

Lott said the state was disappointed with Shelby's latest ruling and will continue its legal battle.

Peggy Tomsic, the lawyer for the same-sex couples who brought the case, called gay marriage the civil rights movement of this generation and said it was the new law of the land in Utah.

“The cloud of confusion that the state talks about is only their minds,” she said.

Tomsic said she was relieved that Shelby stuck to his ruling and avoided being pressured by a moral or political majority in the state.

“It's awfully easy to get caught up in the emotion and do a kneejerk reaction,” Tomsic said outside the courthouse in downtown Salt Lake City. “Fortunately, we have a judge who takes his oath of office seriously.

Meanwhile, couples were getting married once every few minutes in the lobby of the Salt Lake County clerk's office to the sound of string music from a violin duet.

Lawyers for the state waged a legal battle on several fronts as they sought to stop the same-sex weddings.

On Sunday, a federal appeals court rejected the state's emergency request to stay the ruling, saying it couldn't rule on a stay since Shelby had not yet acted on the motion before him. The court quickly rejected a second request from Utah on Monday. The state plans to ask the court a third time to put the process on hold.

Adding to the chaos surrounding the situation is the fact that Utah Attorney General John Swallow stepped down about a month ago amid a scandal involving allegations of bribery and offering businessmen protection in return for favors. The state has had an acting attorney general ever since, and Gov. Gary Herbert appointed a replacement Monday who will serve until a special election next year.

In Shelby's 53-page ruling, he said the constitutional amendment that Utah voters approved violates gay and lesbian couples' rights to due process and equal protection under the 14th Amendment. Shelby said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.

The decision drew a swift and angry reaction from Herbert, who said he was disappointed in an “activist federal judge attempting to override the will of the people of Utah.” The state quickly took steps to appeal the ruling and halt the process, setting up Monday's hearing before Shelby.

The ruling has thrust Shelby into the national spotlight. He has been on the bench for less than two years, appointed by President Barack Obama after GOP Sen. Orrin Hatch recommended him in November 2011.

Shelby served in the Utah Army National Guard from 1988 to 1996 and was a combat engineer in Operation Desert Storm. He graduated from the University of Virginia law school in 1998 and clerked for the U.S. District Judge J. Thomas Greene in Utah, then spent about 12 years in private practice before he became a judge.

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