Utah Ruling May Rush SCOTUS Gay Marriage Decision

In its June 2013 rulings striking down the U.S. Defense of Marriage Act (DOMA) and invalidating California’s Proposition 8 anti-gay marriage initiative, the U.S. Supreme Court nevertheless carefully avoided broadening the scope of its decisions to infringe upon states’ rights in regard to marriage laws, with justices undoubtedly hoping change would be implemented in state legislatures. As a result, while same-sex marriages are now legally recognized at the federal level, recognition under state law varies from state to state.

Now, defenders of Utah’s gay marriage ban seem likely to force the U.S. Supreme Court to weigh in again on same-sex marriage, sooner rather than later.

Following a Dec. 20 ruling striking down Utah’s gay marriage ban on the grounds it was unconstitutional, a federal appeals court issued a Christmas Eve refusal to stay same-sex marriages—in other words, temporarily halt them—during what could be a lengthy appeals process. Stymied in its efforts to prevent what it claims may be legally invalid marriages, the Utah Attorney General’s Office on Dec. 26 vowed to take its request for a stay to the U.S. Supreme Court, possibly as early as the following day, according to CNN.

As Lyle Denniston writes for Bloomberg Law’s

In a two-page order, a two-judge motions panel of the Tenth Circuit found that a stay was not warranted, expressing some uncertainty that the state’s position against same-sex marriage would ultimately prevail in court.  The judges set the case (Kitchen v. Herbert (Circuit docket 13-4178)) for expedited review, with a briefing schedule to be issued shortly.

The request to delay U.S. District Judge Robert J. Shelby’s Dec. 20 ruling legalized same-marriage in Utah would initially land on the desk of Justice Sonia Sotomayor, who is Circuit Justice for the geographic jurisdiction that includes Utah. Sotomayor would have the discretion to rule on her own or refer the request for stay to the full court. In his decision, Shelby cited a similar argument to that used by the Supreme Court to overturn DOMA  in June. Shelby’s ruling states that Utah’s constitutional amendment prohibiting same-sex marriage, approved by Utah voters in 2004, violates gay and lesbian couples' rights to due process and equal protection under the 14th Amendment, as reported by Politico.

Utah same-sex couples rushed to local county clerks’ offices all over the state as soon as Shelby’s ruling came down last week. Some counties began issuing marriage licenses to same-sex couples immediately; others, citing concern that the federal ruling conflicted with Utah law, refused to do so pending further legal clarification. The last four county “hold-outs”—Box Elder, Utah, Piute and San Juan counties—acquiesced to the ruling on Dec. 26, according to an Associated Press report.

San Juan County Clerk Norman Johnson said “what finalized it for me” was Gov. Gary Herbert’s order to state agencies to comply with Shelby’s decision and change procedures for the delivery of state services. To that end, the Utah Department of Workforce Services is recognizing gay couples for food stamp and welfare benefits.

Initially, Herbert, a conservative Republican, had advised counties to seek advice of their county attorneys. Under Utah law it is a misdemeanor offense for a county clerk to issue a marriage license to a same sex couple.

As Denniston surmises in SCOTUSblog, the Utah stand-off could force the Supreme Court to decide whether states have the right to determine who is allowed to marry or whether the larger issue of the civil rights of gay and lesbian people to marry whom they choose must be guaranteed at the federal level. It was inevitable that the high court would have to weigh in eventually, as it did decades ago in regard to interracial marriage. In their carefully limited June rulings, the justices were likely only playing for time for societal norms and human decency to move state laws in the right direction. Now it looks like time may be up.

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.