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The 10th U.S. Circuit Court of Appeals has declined to grant Utah’s request for an emergency stay on the order of Judge Robert J. Shelby, who struck down Utah’s same-sex marriage ban as unconstitutional last week. Within hours of Shelby handing down his judgment the state moved in appeal, but on Sunday, the appeal was rejected because it was not in proper form – those who prepared the initial appeal did it in a hurry and made mistakes.
On Monday the state attorneys filed a revised and proper petition for the grant of a stay pending appeal, but the 10th Circuit refused to grant the request. This is the fourth time the state’s moves to preserve the gay marriage ban has faced defeat in the courts. The only course open to Utah at this point would be to go to the U.S. Supreme Court, where Justice Sonya Sotomayor could refer the matter to the entire court. Unlike the first two denials on applications of stay, this Tuesday, the 10th Circuit did not give the state officials a further chance to file an amended request.
In its two-page order denying the stay, the 10th Circuit observed, “Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted. Accordingly, we Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal.” While the state attorney general’s office is preparing the Supreme Court motion, it has issued an advisory opinion to county clerks telling them they can be held in contempt of court if they refuse to issue same-sex marriage licenses.
Governor Herbert’s chief of staff sent a message to state agencies telling them that “where no conflicting laws exist you should conduct business in compliance with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.”
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