In a two-page order, a three-judge panel on the U.S. Tenth Circuit Court of Appeals determined Utah made an inadequate case for demonstrating why the court should stay recognition of the same-sex marriages performed in the state as litigation progresses.
“In this case, there is harm on both sides of the stay question, which means there is no relaxation of the likelihood-of-success-on-appeal standard,” the order states. “And to succeed on the merits of their appeal, appellants will be required to show that the district court abused its discretion in granting a preliminary injunction.”
On June 5, the court had already placed a temporary stay on a lower court’s preliminary injunction requiring Utah to recognize same-sex marriage performed in the state. But the court says in its order that stay will be lifted on July 21.
The three-judge panel who denied the stay consisted of Judges Jerome Holmes and Carlos Lucero, who were in the majority, and Judge Paul Kelly Jr., who was in the dissent. It’s the same three-judge panel that affirmed Utah’s ban on same-sex marriage should be struck down.
In his dissent, Kelly, who also objected to the ruling that Utah’s marriage ban is unconstitutional, said refusing the state’s request “complements the chaos” the district court created.
“The State will be irreparably harmed without a stay,” Kelly writes. “In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration.”
The lawsuit seeking recognition of same-sex marriages performed in Utah, known as Evans v. Utah, was filed by the American Civil Liberties Union, the ACLU of Utah and Strindberg & Scholnick, LLC, on behalf of around 1,300 gay couples who wed in the state after a district court in December struck down the state’s ban on same-sex marriage.
After the U.S. Supreme Court issued a stay on additional weddings, Gov. Gary Herbert said the state wouldn’t recognize as valid the same-sex marriages performed during that window of time. U.S. Attorney General Eric Holder said the unions would be valid for the purposes of federal benefits.
Although a district court later issued a preliminary injunction requiring the state to recognize the same-sex marriages, Herbert had pledged to seek a stay pending appeal.
John Mejia, legal director of the ACLU of Utah, said the court order is welcome news to same-sex couples who wed in the state and are seeking marital benefits.
“It’s a relief to our clients and the 1,000 other lawfully wedded same-sex couples in our state that their marriages will be recognized throughout this process,” Mejia said. “We continue to fight to ensure that these loving and committed couples get the permanent recognition they deserve.”
But the assurances of state recognition of these marriages isn’t a done deal yet because Utah Attorney General Sean Reyes can still appeal its request for a stay to the U.S. Supreme Court.
Missy Larsen, a Reyes spokesperson, confirmed Utah intends to take up the request for a stay with the high court as the litigation moves forward.
“In response to the United States Court of Appeal for the Tenth Circuit denial of stay in Evans v. Utah, the State is prepared to file an Application for Stay before the United States Supreme Court in the coming days to avoid uncertainty, as noted by the dissenting Judge on the Tenth Circuit,” Larsen said. “The State recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen v Herbert is resolved.”
As SCOTUSblog notes, the request for a stay will bring back the issue of same-sex marriage before the court before it has had a chance to rule on the merits of nationwide marriage equality.
The stay request would go to U.S. Associate Justice Sonia Sotomayor, who’s responsible for stay requests in the Tenth Circuit. She could decide the matter herself, or refer the matter to the entire court.