- The Washington Times - Sunday, December 29, 2013

It’s more than a little ironic that Utah, which was forced to define marriage as the union of one man and one woman as a condition for statehood, has been thrust into the role of traditional marriage’s champion by two pivotal cases involving same-sex couples and polygamy.

The Utah attorney general is expected to file the first follow-up to the Supreme Court’s six-month-old decision striking down the federal Defense of Marriage Act. The state will request a temporary hold on a federal judge’s Dec. 20 ruling striking down the state’s marriage law.

That request, which could be filed as early as Monday, follows four unsuccessful attempts last week to place a stay the ruling by U.S. District Court Judge Robert J. Shelby, who overturned the state’s voter-approved amendment defining marriage as between one man and one woman.

The legal wrangling arrives a week after another federal judge struck down part of Utah’s anti-bigamy law, calling it a privacy violation and effectively nullifying the state’s polygamy ban.

The two critical cases come at a particularly inconvenient time for Utah: A month ago, Attorney General John Swallow resigned amid a legislative probe into criminal charges. Gov. Gary Herbert has since named Republican Sean Reyes to the post, but Mr. Reyes has not yet been sworn in.

Still, there’s little question that Utah, one of the nation’s most socially conservative states, will fight to uphold what had been the marriage status quo since the state was admitted into the union in 1896.

“My intention, when I am attorney general and sworn in, is to continue to defend the laws that have been passed by the people of Utah,” said Mr. Reyes in an interview last week with KSTU-TV in Salt Lake City, the local Fox affiliate.

Hundreds of same-sex couples applied for and received Utah marriage licenses last week even as the attorney general’s office was rejected in its efforts to obtain a stay, once by Mr. Shelby and three times by the 10th U.S. Circuit Court of Appeals in Denver.

The Utah case would be the first in the wake of the Supreme Court’s decision in U.S. v. Windsor, which struck down federal Defense of Marriage Act but stopped short of extending the ruling to the states in what was seen as a bid to avoid a judicial fiat on a hot-button social issue along the lines of Roe v. Wade.

The application for a stay would go before Justice Sonia Sotomayor, who was part of the 5-4 Windsor majority.

“My job and our job as a team will be to continue to defend, legally, the state laws,” said Mr. Reyes. “Beyond that, I think the citizens, regardless of which side of the issue you might fall on, deserve to have the process taken and have final word from the Supreme Court on this issue.”

A shotgun marriage challenge probably wasn’t what the justices had in mind in June when they issued their ruling in Windsor. The Utah case could force the Supreme Court’s hand by compelling them to rule on whether the decision applies to the 33 states that have approved traditional-marriage provisions identical to the now-defunct federal law.

In a companion decision to Windsor, the Supreme Court managed to avoid the state question by ruling that the citizens’ group behind California’s Proposition 8 had no standing to challenging a federal judge’s ruling striking down the initiative.

The citizens’ group took up the case because California’s attorney general and governor refused to do so, but that won’t be the case in Utah, where Mr. Herbert has already denounced Judge Shelby as an “activist federal judge” whose ruling has “created a chaotic situation in our state.”

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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