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.
— Ben Winslow (@BenWinslow) December 25, 2013