In a dramatic turn in the Utah marriage equality case, a two-judge panel of the 10th Circuit Court of Appeals has refused to grant the State of Utah a stay of District Court Judge Robert J. Shelby’s December 20 decision finding that state’s ban on same-sex marriage is unconstitutional.
That means that marriages, which already number in the hundreds in Utah, will continue while the state pursues its appeal.
The order denying the stay, decided by Circuit Court Judges Jerome A. Holmes and Robert E. Bacharach, laid out four factors that governed their analysis –– the state’s likelihood of success on appeal; the threat of irreparable harm to the state if the stay is not granted; the absence of harm to the plaintiff couples if the stay is granted; and any risk of harm to the public interest.
Noting that the first two factors –– the state’s likelihood of success and the risk of harm to the state if the stay is denied -- are the most salient, the judges wrote, “We conclude that a stay is not warranted.”
Their order continued, “We deny Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal.”
In the wake of the 10th Circuit’s decision to deny the state’s motion to have the marriages halted, Ben Winslow, a reporter at the Salt Lake City Fox News affiliate, reported that Utah has asked the Supreme Court to issue an emergency stay. Justice Sonia Sotomayer will hear that motion on the morning of December 26. She can review the motion or ask the full court to take it up.
Should Sotomayor deny the state’s request, Utah could seek review by one other justice.
[Editor's note: On December 26, the Utah Attorney General's Office issued the following statement: “The Attorney General’s Office is preparing an application to the United States Supreme Court requesting a stay of the district court’s order. Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days. It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible.”]
Judge Holmes was appointed to the 10th Circuit Court of Appeals by President George W. Bush. Judge Bacharach and Justice Sotomayor were appointed to their seats by President Barack Obama.
The 10th Circuit order was first reported by Chris Geidner on Buzzfeed.