The uncertainty is creating a lot of chaos. A stay would have been appropriate until we have a resolution. —Gov. Gary Herbert
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.
But it might be hard for the appeals court to overturn Shelby's decision because once people are married, it would be difficult to go back and undo those marriages, said Cassell, a former federal judge.
"The way this has played out is a little bit unusual in that now the state is trying to put the genie back into the bottle and that's always a little tricky to do," he said.
Shelby noted that the state didn't file a motion for a stay before he issued his ruling last Friday and didn't seek one until two or three hours afterward.
Lott said the judge's ruling on the Friday before Christmas "frankly surprised" the state. He said he thought that Shelby didn't intend to rule until early January, but "I personally believe it wouldn't have made much difference."
Lott argued that Shelby's order overrides the democratic voice of Utahns who voted in 2004 to define marriage as between one man and one woman. He asked Shelby to maintain the status quo.
But Shelby questioned what the status quo is at this point.
Tomsic argued that the status quo changed with Shelby's order and county clerks are obligated to issue marriage licenses to gay and lesbian couples.
"It is the law in Utah," she said.
In addition to seeking a stay from the 10th Circuit, the state also appealed Shelby's ruling on the lawsuit. Cassell said it would decide the outcome of the case, unless the U.S. Supreme Court steps in.
"But the Supreme Court reviews only a handful of cases every year, so statistically the odds are the 10th Circuit is going to have the final word on this one," he said.
Some counties in Utah declined to issue licenses based on a section of state code that makes it a class A misdemeanor for county clerks to give one to anybody but a man and a woman, Salt Lake County deputy district attorney Darcy Goddard told Shelby during the hearing.
Shelby said his ruling didn't identify every state law pertaining to marriage, but its intent was to not prohibit couples from exercising their constitutional right to marry.
Acting Utah Attorney General Brian Tarbet said after the hearing that county clerks should listen to what their county attorneys tell them.
"That's what the governor asked them to do in his letter of Saturday, is consult with your legal advisers. Those are their elected county attorneys," he said.
Nine of the state's 29 counties chose not to issue marriage licenses on Monday.
Tomsic said Gov. Gary Herbert's letter implies that counties shouldn't follow Shelby's order. She said that's no different than Gov. George Wallace not allowing a black girl in school, referring to the landmark Brown vs. Board of Education case in 1954 that overturned state-sponsored segregation.
Herbert, who called Shelby an "activist" judge last week, said he was not surprised at the court's refusal to grant a stay but was disappointed because of what he says are the ensuing results.
"The uncertainty is creating a lot of chaos. A stay would have been appropriate until we have a resolution," he said.
Herbert spoke just after he appointed Sean Reyes as Utah's new attorney general, replacing John Swallow who resigned this month. Tarbet has served as attorney general the past few weeks.
Reyes rejected the notion that the state's filing was not timely enough. He noted that the attorney general's office filed the motion soon after Shelby's ruling came down on Friday afternoon.
"I am not sure how much more prompt this office could have been," he said.
Herbert later issued a statement saying he's committed to advancing the issue through the courts as "we work toward a clear and understandable resolution."
“I recognize that this is a highly emotional issue with people of goodwill on both sides of the debate," he said. "I encourage everyone to remain respectful of one another and of the legal process.”
Shelby's Friday decision is the first in the country to address whether a state may ban same-sex marriage under the Constitution since the U.S. Supreme Court voided the section of the Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.
Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed a lawsuit challenging the law in March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.
Salt Lake County alone issued 124 marriage licenses to gay and lesbian couples within hours of Shelby's ruling on Friday and another 353 on Monday, according to the county clerk's office. It is unknown how many got married.
A Utah Policy/KSL poll of political insiders found 92 percent of Democrats and a surprising 53 percent of Republicans believe the 10th Circuit will uphold Shelby’s ruling on appeal.
Twitter: DNewsPolitics; dennisromboy