The 10th Circuit Court has denied the state’s request for an emergency stay on Judge Shelby’s ruling that struck down Utah’s ban on gay marriage ruling. It appears the state didn’t file their request correctly.
According to court documents, “The Defendants-Appellants ask this court to stay the district court’s order pending the district court’s ruling on a motion for stay pending appeal that is currently pending in that court.”
Judge Shelby will still be holding a hearing at 9 AM tomorrow morning to decide whether he will issue a stay—essentially placing his ruling on hold and preventing further marriages from taking place until the 10th Circuit Court hears the case.
At this point, it appears unlikely Judge Shelby will issue such a stay.
The state is free to refile their request (assuming they can do it correctly this time), but the burden they have to show the court is pretty high. 10th Circuit Rule 8.1 says that the requirements for a stay to be granted are as follows:
(A) the basis for the district court’s or agency’s subject matter jurisdiction and the basis for the court of appeals’ jurisdiction, including citation to statutes and a statement of facts establishing jurisdiction;
(B) the likelihood of success on appeal;
(C) the threat of irreparable harm if the stay or injunction is not granted;
(D) the absence of harm to opposing parties if the stay or injunction is granted; and
(E) any risk of harm to the public interest.”
Since the court has already ruled that no harm is done to straight marriages by gay people getting married, and gay couples would suffer harm if a stay were put into place, it is becoming less and less likely that any court will grant a stay during the appeals process.
Ironically, the mistakes made in filing for the stay could be a result of the scandal surrounding former Attorney General John Swallow, who’s recent resignation may have left the Attorney General’s office unprepared to handle such a case.
Meanwhile, the Salt Lake County and Weber County Clerks’ offices open at 8am tomorrow morning and have said they will resume processing marriage licenses for same-sex couples. Hundreds of potential newlyweds are expected to be waiting in line before doors open, hoping to be married before the 9am hearing with Judge Shelby in case he does issue a stay.