WASHINGTON, D.C., January 2, 2013 ( – In an ironic twist in the culture wars, the state of Utah is asking the U.S. Supreme Court to temporarily uphold its ban on same-sex “marriage” – by using the logic that overturned the Defense of Marriage Act (DOMA).

On December 20, U.S. District Court Judge Robert Shelby, an Obama appointee, struck down Utah's constitutional marriage protection amendment, as well as other state ordinances. He ruled that “laws restricting marriage to heterosexuals 'demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.'”

Utah Governor Gary Herbert and newly appointed state Attorney General Sean Reyes immediately asked Shelby and the 10th Circuit Court to prevent same-sex licenses for “marriage” from being validated while the 10th Circuit Court considers the state's appeal. The stay was denied by Shelby and the 10th Circuit Court.


Herbert is asking the Supreme Court to uphold the constitutional ban on the same basis the Court used to overturn DOMA, because marriage is a state issue in America.

In the request for staying Shelby's decision, Reyes argues a stay is consistent with past Court rulings because of the Court's decision in Windsor v. United States, which overturned a key portion of DOMA. “In part for reasons of federalism, the Windsor majority held that the federal government, in administering federal programs, cannot constitutionally disregard State laws allowing same-sex marriages,” his request states.

According to Reyes, the Supreme Court's Windsor ruling makes Shelby's decision an “an outright abrogation” of state rights, because “a single federal court [is] wielding a federal injunction and acting under the banner of the federal Constitution.”

Reyes also writes that a stay will serve the public interest by allowing the Supreme Court “to address matters of vital national importance before additional irreparable injury is inflicted in the State and its citizens.” The request specifically notes that homosexuals would be harmed by Shelby's and the 10th Circuit Court's decisions not to enforce a stay, because if Shelby's decision is overturned, same-sex couples will see their marriage licenses invalidated and “likely suffer…financial losses.”

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If upheld, Shelby's decision would make Utah the ninth state to have judges decree gay “marriage” must be legal, out of the 18 states that recognize same-sex “marriage.” Voters in the majority-Mormon state voted to uphold traditional marriage in 2004.

The decision has potential implication for the rest of the nation, since Shelby is a federal judge.

The appeal may be decided by any Supreme Court justice, but it first has to be approved or denied by Justice Sonia Sotomayor. This week, Sotomayor upheld an injunction against the HHS abortion/contraception mandate under the Affordable Care Act.


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