Utah's Same-Sex Marriage Ban in Tenth Circuit's Hands

, The Litigation Daily

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Sheri Qualters writes for The National Law Journal, an American Lawyer affiliate.

A federal judge’s refusal to stay a ruling that allowed same-sex marriages in Utah has set off a skirmish before the U.S. Court of Appeals for the Tenth Circuit.

State defendants in Kitchen v. Herbert raced to the appeals court on Monday after U.S. District Judge Robert Shelby issued a bench ruling denying the stay pending appellate review.

“Utah should be allowed to enforce its democratically chosen definition of marriage until the appropriate appellate court of last resort has declared otherwise,” the Utah attorney general’s office argued.

The Tenth Circuit “can stop the chaotic situation from continuing any further by staying the district court’s order until it can be fully and fairly reviewed by this Court,” the motion continued.

Plaintiffs attorneys quickly shot back with a notice that they intended to file an opposition day’s end. The lawyers at Magleby & Greenwood in Salt Lake City did not respond to requests for comment.

Shelby on Dec. 20 enjoined the state from enforcing Amendment 3 to the Utah Constitution, which bars same-sex marriages. The same day, the defendants filed a Tenth Circuit appeal and a motion to stay in Utah federal court.

On Saturday, Shelby set a hearing on the state’s stay motion for Monday morning. Meanwhile, on Sunday and Monday, the Tenth Circuit declined to intervene. Judges Robert Bacharach and Jerome Holmes signed those appellate orders.

The response to Shelby’s ruling came quickly. The Salt Lake County Clerk’s office began issuing marriage licenses to same-sex couples that same afternoon and some were married that day.

In a telephone interview, Salt Lake County District Attorney Sam Gill said he advised the clerk to issue the licenses to all couples until some court issued orders to the contrary. “As one of the named parties, we didn't take [Judge Shelby’s order] as being speculative,” Gill said.

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