December 24, 2013 at 7:28 pm EDT | by Chris Johnson
Tenth Circuit won’t stay Utah same-sex marriages
National LGBT Bar Association, Gay News, Washington Blade

The Tenth Circuit Court of Appeals denied a stay on Utah same-sex marriages (image via wikimedia).

Two judges on the U.S. Tenth Circuit Court of Appeals denied a stay Tuesday on the same-sex marriages underway in Utah in the wake of a district court decision overturning the state’s ban on marriage equality.

In the two-page order, U.S. District Judge Jerome Holmes, an appointee of President George W. Bush, and U.S. District Judge Robert Bacharach, an Obama appointee, also agreed to consider the merits of the case on appeal on an expedited basis.

“Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted,” the decision states. “Accordingly, we deny Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal.”

In determining whether to grant a stay in a case, the judges write that the likelihood of success on appeal and the threat of irreparable harm are the “most critical” considerations and they “require more than a mere possibility of success and irreparable harm, respectively.”

Unlike the first two denials this week for an emergency stay, the judges don’t give state officials another chance to refile their request, meaning the Tenth Circuit has delivered its final word on the issue. The two judges who denied the stay are the same two judges would denied the stays earlier this week.

But same-sex marriage seeking to marry in Utah aren’t out of the woods yet. State officials — Gov. Gary Herbert and Attorney General Sean Reyes — can file a request for a stay before the U.S. Supreme Court. The request would go to U.S. Associate Justice Sonia Sotomayor, who could refer the issue to the entire court.

According to local TV affiliate Fox 13, Reyes intends to take that route and file a request for a stay before the U.S. Supreme Court.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • Sheldon

    I know this article was written quickly, but it’s important to note that the judges who sit on a US Court of Appeals, unless assigned there temporarily in an emergency, are US appellate judges, not district judges as was reported here. The decision was appealed from a US District Court decision written by US District Judge Robert Shelby, to the US Court of Appeal for the 10th Circuit. Holmes and Bacharach are not district judges.

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