NEW: Sotomayor is likely to refer Utah request to entire court, expert says
Utah attorney general will appeal a lower-court ruling to nation's highest court
Utah will file appeal after consulting with outside attorneys over the next few days
A lower federal court struck down Utah's ban on same-sex marriage
Utah officials will appeal to the U.S. Supreme Court a lower-court ruling allowing same-sex marriage in the state, the state attorney general’s office said Thursday.
Newly appointed Utah Attorney General Sean Reyes will seek a stay of the federal judge’s ruling after state officials consult first with outside attorneys over the next few days.
“It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible,” the attorney general’s office said in a statement.
The emergency appeal, when filed, would go to Justice Sonia Sotomayor because she has jurisdiction over appeals from Utah and nearby states. She could rule on the state’s application herself or ask the entire nine-member court to weigh in.
Sotomayor is likely to refer the Utah request to the entire court, as is tradition with high-profile traditional cases, said Carl Tobias, a professor of constitutional law at the University of Richmond.
The Utah announcement comes two days after state officials lost their case in a federal appeals court, which said the state’s request for a stay wasn’t warranted and ordered the appeal process be expedited.
The appeals court’s ruling allows same-sex marriages to continue in Utah while appeals continue.
Last week, U.S. District Judge Robert J. Shelby struck down Utah’s ban on same-sex marriage, saying the law “conflicts with the United States Constitution’s guarantees of equal protection and due process under the law.”
Utah voters approved a law banning same-sex marriage in 2004.
Judge Shelby’s ruling drew national attention partly because Utah is viewed as among the more conservative states and because the U.S. Supreme Court just ruled this summer on same-sex marriage.
In June, the nation’s highest court cleared the way for same-sex marriages in California to resume after it ruled private parties did not have “standing” to defend California’s voter-approved ballot measure barring gay and lesbian couples from state-sanctioned wedlock.
The U.S. Supreme Court also rejected parts of the federal Defense of Marriage Act (DOMA) in a 5-4 decision, dismissing an appeal over same-sex marriage on jurisdictional grounds and ruling same-sex spouses legally married in a state may receive federal benefits.
In the Utah case, the state argues that the “federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit” Court of Appeals, the attorney general’s office said.
The federal judge’s ruling, nonetheless, prompted a rush of same-sex couples to courthouses in Utah where they obtained marriage licenses, despite the state’s ongoing legal challenge.
Some jurisdictions such as Piute and San Juan Counties are issuing marriage licenses to same-sex couples, but there haven’t been requests for them there, officials said.
Utah Gov. Gary R. Herbert has criticized Judge Shelby’s ruling of last week, calling him “an activist federal judge.”
Shelby said 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 said.
Same-sex marriage is banned by constitutional amendment or state law in: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin and Wyoming.
It is legal in 17 other U.S states and the District of Columbia: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Washington.
CNN Supreme Court Producer Bill Mears contributed to this report.