Federal judge denies state’s request for stay on gay marriage

Posted at 11:18 AM, Dec 23, 2013

SALT LAKE CITY -- A federal appeals court in Denver is now considering whether to halt same-sex marriages from being performed in Utah, after a judge here denied the state's request to stop them.

At a hearing this morning in U.S. District Court, Judge Robert Shelby denied a motion to stay the marriages, pending an appeal to the 10th U.S. Circuit Court of Appeals. Shelby questioned why the state did not bring a motion to stay earlier, like others have in advance of similar rulings.

"It was the Friday before Christmas," Phil Lott, an assistant Utah Attorney General, told the judge, saying they did not have notice the ruling was coming down.

Lott said the decision has created "chaos," with same-sex couples rushing to their county clerk's offices to be married.

"There's great irony in Utah being compelled by the federal government to adopt a definition of  marriage as one man and woman," Lott told the judge. "Now, the government seeks to adopt a different definition."

Lott said allowing the same-sex marriages to continue would cause "irreparable harm" to the state and create further confusion if those marriages were invalidated.

"Is there also irreparable harm when citizens are denied constitutional rights?" Judge Shelby asked.

Peggy Tomsic, an attorney for the couples who sued Utah to overturn Amendment 3, said the state was trying to re-argue what it had already lost when the judge declared it unconstitutional.

"A court requires more than a simple re-argument," she told the judge.

Shelby agreed, denying the state's motion to halt the marriages. In making his ruling, Shelby also admonished county clerks to start issuing licenses to same-sex couples, or they would be breaking the law.

"To the extent it's not clear from the court's ruling, my intent was to find that the laws of Utah that operate to deny same-sex couples the right to marry -- operate in violation of due process," he said.

On Friday, Shelby ruled that Utah's Amendment 3 -- defining marriage as between one man and one woman -- was unconstitutional. The first same-sex marriages were performed within an hour of the ruling coming down, Darcy Goddard, an attorney for the Salt Lake County District Attorney's Office, told the judge in court.

In court, Tomsic accused Governor Gary Herbert of creating confusion for the clerks by sending a letter over the weekend, urging them to seek advice from their county attorneys and county commissions before proceeding.

Outside of court, Lott refused to tell FOX 13 if the attorney general's office would instruct county clerks to issue licenses.

Within minutes of Judge Shelby's ruling, the Utah Attorney General's Office filed a motion to stay the marriages within the 10th Circuit Court of Appeals. Two previous attempts had been denied by the appeals court, which said the state failed to follow proper procedures.

Judges Holmes and Bacharach with the 10th Circuit Court of Appeals ordered lawyers for the gay couples suing to overturn Amendment 3 to have a response to the state's request by 5 p.m.

Their ruling on whether to grant or deny a stay could then come at any time.

Poll: Should same-sex marriages continue in Utah?

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