Federal District Court Judge Robert Shelby, who ruled on Friday that Utah’s law banning same-sex marriage was unconstitutional, has denied the state’s request to stay the effect of his ruling pending its resolution on appeal:
A federal judge in Utah — who last week issued a controversial ruling allowing same-sex marriages — on Monday denied the state’s request for a stay.
State attorneys had argued before U.S. District Judge Robert J. Shelby that same-sex couples who marry in Utah would be irreparably harmed if the state’s continuing efforts to overturn the judge’s ruling succeed and those marriages are later invalidated.
In denying the request for a stay, Shelby agreed with an attorney representing three same-sex couples in the lawsuit that challenged Amendment 3, saying the state had only regurgitated the arguments he had already thrown out.
But state attorneys wasted no time in filing a request for a stay — their third such request since Friday — with the 10th Circuit Court in Denver.
The state’s latest request asks the 10th Circuit Court to grant an emergency stay, stopping same-sex marriages immediately, even before the appeals court issues a ruling on the state’s motion to halt marriages pending an appeal.
The hearing before Shelby began at 9 a.m. to hear the state’s request for a stay. Shelby retired to deliberate at about 10:20 a.m. He issued his decision at about 11:15 a.m.
Meanwhile, hundreds of same-sex couples resumed obtaining marriage licenses on Monday.
But while some clerk’s offices were issuing hundreds of marriage licenses to same-sex couples, others were not issuing any — indicating they wanted to see how Shelby would rule on the state’s request for a stay.
Judge explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties who don’t comply are breaking the law.
State officials had filed the request over the weekend, but had also filed simultaneously filed requests for a stay with the 10th Circuit Court of Appeals which were denied primarily for procedural reasons:
The judge made his decision effective immediately. The state sought an emergency stay of the decision, but before the district court ruled on it, the state sought an extraordinary interim emergency stay from the 10th Circuit pending the district court’s decision on its request for stay. Over the weekend, the 10th Circuit denied the interim request, essentially telling the state there was no mechanism in the federal rules for it. (UPDATE: A second request for stay in the Tenth Circuit was also denied. Thanks to commenter JHW27 for the info.) So the state is back in the district court this morning to have its emergency stay request heard. The hearing begins at 9 a.m. (Mountain), and the judge can be expected to rule quickly, perhaps at the end of the hearing or later today. If he does not grant the stay, the state will be back in the 10th Circuit seeking a stay from the appeals court.
I’d expect that the state will file that request sometime this afternoon, but its unclear when the 10th Circuit might rule on the matter.If it decides to rule just based on the pleadings filed by both sides, we could see a ruling sometime today or tonight. If it wishes to hold a hearing, it would be possible to hold a hearing tomorrow and rule before the end of the day. Alternatively, given the holiday, the Court could wait until the 26th or 27th to decide the matter. If the 10th Circuit declines the stay then the state could theoretically take the matter to the Supreme Court but it would extraordinary for SCOTUS to involve itself at this stage of the proceedings. Quite obviously, though, if the stay is ultimately denied then gays and lesbians will continue to be permitted to get married in Utah until a Court has ruled otherwise.
