Court lifts stay, but gives Utah chance to appeal same-sex marriage recognition

Published: Friday, July 11 2014 6:00 p.m. MDT

People look on as they gather with about 50 same-sex marriage advocates while delivering a petition with thousands signatures to the governor’s mansion pushing for recognition of gay married couples Wednesday, July 9, 2014, in Salt Lake City.

Rick Bowmer, AP

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SALT LAKE CITY — The 10th Circuit Court of Appeals ruled Friday that Utah hasn't proven that it should stay a lower court's ruling requiring Utah to recognize the 1,300 same-sex marriages that were performed in the state in December and January.

The 2-1 decision was issued late Friday. It allows a temporary stay to continue for 10 days in order for the state to appeal the decision to the U.S. Supreme Court. The state had sought to have the lower court ruling put on hold for the duration of the full appeal. The temporary stay will now expire at 8 a.m. on July 21 unless the Supreme Court issues a new stay.

The Utah Attorney General's Office quickly announced Friday that it will appeal the decision to the high court "to avoid uncertainty as noted by the dissenting judge on the 10th Circuit."

"The state recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen vs. Herbert is resolved," the office announced in a prepared statement.

Four same-sex couples who married in Utah sued the state, arguing that the state is disrupting their lives because it doesn't recognize their unions. The couples were married between Dec. 20 and Jan 6, the period between U.S. District Judge Robert J. Shelby's ruling that struck down Amendment 3 and a stay of the ruling issued by the U.S. Supreme Court. Amendment 3 was approved by Utah voters in 2004 and defined marriage as between a man and a woman.

In May, U.S. District Judge Dale A. Kimball ordered Utah to recognize those marriages and grant benefits to the approximately 1,300 same-sex couples. The state appealed that decision to the 10th Circuit Court of Appeals, which issued a temporary stay in the matter.

Friday's 2-1 ruling says the state did not make a sufficient showing to warrant a permanent stay pending the full appeal.

The dissent

Tenth Circuit Judge Paul J. Kelly dissented in Friday's opinion, saying there is a "great risk of harm to the public interest" by not issuing a permanent stay.

"In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force," he wrote.

The court said to obtain a stay, Utah had to prove four things: a likelihood of success on appeal, that the state would suffer irreparable harm without a stay, an absence of harm to the opposing party if a stay was granted, and that a stay is in the public interest.

Judges Carlos F. Lucero and Jerome A. Holmes said the state didn't meet those requirements. But in Kelly's view, Utah did meet them.

The couples' right to marry was created by Shelby's decree, which is "non-final," he said.

"The rule contended for by the plaintiffs — that a federal district court may change the law regardless of appellate review and the state is stuck with the result in perpetuity — simply cannot be the law," he wrote. "It would not only create chaos, but also undermine due process and fairness."

He said granting a stay would not harm same-sex couples or impact their claims.

"Though the plaintiffs have important interests at stake, those interests may still be vindicated while appellate review occurs, and plaintiffs are free to live their lives as they will," he said.


The reaction to Friday's decision followed the pattern of previous court decisions in the case.

"The harm that is occurring right now, frankly, because of the stay, I think has been huge for those couples," said Karen McCreary, executive director of the American Civil Liberties Union of Utah.

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