Judge declines to issue stay in same-sex marriage ruling

Governor, state attorneys say decision leaves Utah in 'chaos'

Published: Monday, Dec. 23 2013 11:20 a.m. MST

Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning.

Ravell Call, Deseret News

SALT LAKE CITY — A federal judge declined Monday to stay his controversial ruling that legalized same-sex marriage in Utah.

U.S. District Judge Robert Shelby said the state of Utah failed to meet its burden for a stay to be issued and said the same arguments made Monday were ones he'd already considered in his original ruling on Friday. He said the state didn't show that it would likely win its appeal of the case on the merits or that it suffers irreparable harm in allowing same-sex couples to marry.

The state immediately filed an emergency motion for a stay from the 10th Circuit Court of Appeals in Denver, but the court had not acted as of late Monday night.

Shelby's decision means gay and lesbian couples may continue to get marriage licenses and exchange vows in Utah unless the appeals court says otherwise. Counties throughout Utah issued about 700 marriage licenses Friday and Monday.

"My obligation is to make a substantive ruling (on the merits of the lawsuit) and step aside and let the 10th Circuit weigh in," the judge said in denying the stay after a two-hour hearing in U.S. District Court. "My ruling is the first ruling in this case. It's certainly not going to be the last."

Assistant attorney general Phil Lott said the lack of a stay leaves Utah in "chaos." The state is concerned not only for people who are against same-sex marriage but couples who enter same-sex marriages that could be void in the future, he said.

Lott said it's ironic that the federal government forced Utah to adopt a traditional definition of marriage at statehood in 1896 and is now being told that definition is invalid.

Shelby struck down Utah's voter-approved constitutional amendment defining marriage as the union of one man and one woman last Friday. He said in a 53-page ruling that it violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

Peggy Tomsic, an attorney for three gay and lesbian couples who sued the state over its definition of marriage, said Shelby followed the law.

"It's awfully easy to get caught up in the emotion and do a knee-jerk reaction, and fortunately we have a judge who takes his oath of office seriously, which is to read, interpret and apply the United States Constitution and not be pressured by a moral and political majority," she said.

After Shelby denied the state's motion, the Utah Attorney General's Office asked the 10th Circuit to "stop the chaotic situation" by staying Shelby's "view of a new and fundamentally different definition of marriage."

"Utah should be allowed to enforce its democratically chosen definition of marriage until the appropriate appellate court of last resort has declared otherwise," the state argued.

In arguing against the stay in the appeals court, Tomsic wrote that Shelby concluded in his order that Utah's Amendment 3 imposes serious constitutional harms, including violations of and interference with the fundamental right to marry and to equal protection of the laws.

Tomsic said that the only relevant "cloud of uncertainty" is the one hanging over same-sex couples who can't protect their families because they're denied the right to marry.

"The public has no interest in enforcing unconstitutional laws or in relegating same-sex marriage couples and their families to a perpetual state of financial and legal vulnerability," she wrote.

University of Utah law professor Paul Cassell anticipated that the 10th Circuit would rule rapidly on whether to issue a stay.

"Obviously, this is an issue that has to be settled one way or another very quickly," he said.

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