Utah

Law professor Noah Feldman argues in a piece for Bloomberg that the U.S. Supreme Court's decision to strike down the federal Defense Against Marriage Act without declaring same-sex marriage a fundamental constitutional right has left the issue "a total friggin' mess." The result is the limbo in Utah in which a federal judge has declared that state's ban unconstitutional and same-sex nuptials have been proceeding until the Supreme Court stayed the ruling yesterday. Feldman said that the Windsor majority made a mistake by not going to the full marital goalpost. "Striving for gradualism, it gave us confusion," Feldman says. "Right now in Utah, some people are in a marriage limbo. They have married since the district court ruling, and now their unions are recognized by the federal government, too (one presumes) under Windsor. If the state ban is reinstated, what then? They will be unmarried (maybe) under Utah law. Will they be federally unmarried, too? It's not an abstract question, since they might not be able to get married in other states that recognize gay marriage since they aren't residents of those states. In short, we may be facing citizens who are married in no state but are married federally."

The U.S. Supreme Court halted same-sex marriages in Utah this morning while an appeal of a ruling that the state's ban on same-sex nuptials violates constitutional rights proceeds in the Tenth Circuit, NPR reports. A stay during an appeal was denied by lower courts. The justices' order was without comment or dissent.

Bloomberg reports on the plans of Utah governmental officials to ask the U.S. Supreme Court to block same-sex marriages. A federal district court has ruled that Utah's ban on same-sex nuptials violates constitutional rights to equal protection and due process, but the Tenth Circuit ruled against holding the trial court in abeyance while Utah appeals the decision.

A federal judge struck down Utah's ban on same-sex marriage as violative of LGBT couples' rights to due process and equal protection, the AP reports. U.S. District Judge Robert J. Shelby's ruling could prime the issue for the U.S. Supreme Court. The Supreme Court, while ruling this year that a ban on federal benefits for gay couples is unconstitutional, did not address whether there is a fundamental right for same-sex couples to get married in the United States.

U.S. District Court Judge Robert J. Shelby of the District of Utah heard oral arguments yesterday on a lawsuit challenging that state's ban on same-sex marriage, the Salt Lake Tribune reports. Shelby said the constitutionality of the ban will turn on whether the copules are "seeking a new right or establishing access to an existing, fundamental right to state-sanctioned marriages," The Tribune further reports.

State attorneys argue that the plaintiffs are seeking to establish a new right and the ban should get rational basis scrutiny "to determine if Utah’s law promotes a legitimate government interest in supporting responsible procreation and the 'gold standard' of two biological parents for child rearing," according to The Tribune.

In contrast, the plaintiffs’ attorney "advocated a heightened-scrutiny standard, which would recognize same-sex couples as an unprotected class such as racial minorities or women."

In the view of state attorneys, the lawsuit is aimed at establishing a new right, one that no other federal court has recognized. In the view of attorneys representing the plaintiffs, it is about gaining access to the fundamental right to chose whom to love and marry.