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Utah seeks extension in same-sex marriage appeal

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The Utah Attorney General’s office has asked the 10th Circuit Court of Appeals for a 10-day extension to submit its opening brief in its appeal of District Judge Robert Shelpby’s ruling that Utah’s Amendment 3 and other anti-gay marriage laws are unconstitutional.

The Circuit Court granted an expedited appeal at the state’s request, saying the state had until Jan. 27 to file its first brief.

“Requests for extension of time are very strongly discouraged, and will be considered only under extraordinary circumstances,” the justices warned in the order.

The request comes one day after the Utah Attorney General Sean Reyes announced his office hired a well-known D.C. lawyer, Gene Schaerr, to serve as outside counsel, along with former Michigan Solicitor General John Bursch and Marriage Law Foundation founder Monte Neil Stewart for the appeal.

“A short extension of time is necessary to allow State Defendants to complete a fulsome, detailed and quality brief on the significant constitutional questions surrounding a State’s definition of marriage as only between a man and a woman,” Assistant Attorney Generals Stanford E. Purser and Phillip Lott wrote in the request.

The state writes that the Supreme Court stay of Shelby’s ruling was a rare occurrence and indicates an interest in the appeal by the Court and a desire by the Court for the appeal to be “handled in an orderly way befitting the important issues being addressed.”

Lawyers for the three plaintiff couples in the case said at the time of the Supreme Court stay that the order, which was given with no explanation, “is not unusual for the court to stay a decision declaring a state law unconstitutional pending appeal.”

The state also said that outside counsel was only recently hired.

Both the stay and the hiring of outside counsel were decided on by the state. Such “extraordinary circumstances” were by their own design.

The state also said a court clerk told them, “the Court is considering extending each of the existing briefing deadlines by 2 or 3 days.” They also noted that a similar case out of Oklahoma could also be appealed to the 10th Circuit and “the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters.”

Oklahoma defendants filed for appeal in the court yesterday.

Attorneys for the plaintiff couples are against the extension.

“We will expeditiously file an opposition because a delay in this appeal causes significant harm every day for our clients and for the 1,300 same-sex couples who were legally married and whose marriages Gov. Herbert won’t recognize,” Attorney Peggy A. Tomsic, who with attorney James E. Magleby represents the plaintiffs who challenged Amendment 3, said.

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