Rick Bowmer, AP
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.

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.

She referred to petitions delivered to Gov. Gary Herbert this week urging the state to end its court battle against same-sex marriage.

"We really need to just stop spending state taxpayer dollars this way," McCreary said. "I think it would really be helpful if that state would not appeal this."

Bill Duncan, director of the Marriage Law Center for the Utah-based Sutherland Institute, called Friday's decision a "serious mistake" and said he supports Utah's decision to appeal.

"My thought would be that the appropriate thing to do would be to go to Supreme Court and explain exactly the situation that the state is under, where they've been ordered to recognize marriages against the express law of the state," Duncan said.

He said the debate over same-sex marriage is a positive opportunity for the state to lead out on a national issue.

"The state of Utah has shown to this point that they're willing to make a full defense of the law. They're not going bow to political pressure," Duncan said. "That's exactly the kind of case the Supreme Court ought to hear, so I think it's good that they're also first in line in terms of making that defense."

Megan and Candice Berrett, who were married in the wake of Shelby’s decision, were denied their petition for joint custody of their daughter when the state refused to recognize the union.

They said they were "thrilled" to hear Friday's announcement and immediately began making calls to their lawyer about the adoption, Megan Barrett said.

"We’re always thrilled to hear about new cases that are finally coming out and some of the good news that is happening since Dec. 20," she said. "That Friday when we were able to get married, it wasn’t about us. We had had our wedding ceremony in New York earlier that summer. For us, it was for our daughter Quinn so that I could get those adoptive rights so that I could be her legal guardian and parent."

Gov. Herbert response

Herbert spokesman Marty Carpenter said the governor concurs with Kelly's dissent to maintain the status quo.

"The governor agrees with Judge Kelly who wrote in his dissent that the state and its citizens are better served by obtaining complete, final judicial resolution of these issues. The governor believes that such resolution can only come from the Supreme Court."

Email: mromero@deseretnews.com, Twitter: McKenzieRomero; DNewsCrimeTeam