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Judge denies Utah AG's request to halt same-sex marriages
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A federal judge in Utah — who last week issued a controversial ruling allowing same-sex marriages — on Monday denied the state's request for a stay.

State attorneys had argued before U.S. District Judge Robert J. Shelby that same-sex couples who marry in Utah would be irreparably harmed if the state's continuing efforts to overturn the judge's ruling succeed and those marriages are later invalidated.

In denying the request for a stay, Shelby agreed with an attorney representing three same-sex couples in the lawsuit that challenged Amendment 3, saying the state had only regurgitated the arguments he had already thrown out.

But state attorneys wasted no time in filing a request for a stay — their third such request since Friday — with the 10th Circuit Court in Denver.

The state's latest request asks the 10th Circuit Court to grant an emergency stay, stopping same-sex marriages immediately — a stay they want to be in effect until the appeals court decides whether to overturn Friday's decision. The appeals court is not expected to make that decision for at least a few months.

Before making that decision, appellate judges will receive briefs from both sides and possibly schedule oral arguments. It will be several weeks from now until the appeals court will set a schedule for the filing of briefs, a court official told The Salt Lake Tribune.

The hearing before Shelby began at 9 a.m. to hear the state's request for a stay. Shelby retired to deliberate at about 10:20 a.m. He issued his decision at about 11:15 a.m.

Meanwhile, hundreds of same-sex couples resumed obtaining marriage licenses on Monday.

But while some clerk's offices were issuing hundreds of marriage licenses to same-sex couples, others were not issuing any — indicating they wanted to see how Shelby would rule on the state's request for a stay.

Judge Shelby explicitly said his ruling allows all people the "fundamental right" of marriage. He said counties who don't comply are breaking the law.

In Utah County, the clerk's office was not issuing same-sex marriage licenses even after Shelby ruled, and they turned away at least three couples. Utah County Clerk Bryan E. Thompson told The Salt Lake Tribune he would wait to see how the 10th Circuit Court of Appeals in Denver ruled on Shelby's decision before deciding how to proceed.

Gov. Gary Herbert issued a statement following Shelby's ruling, saying he was disappointed.

"It's not surprising to me. It's disappointing, but not surprising," Herbert said. "Typical wisdom would have had, with the order of last Friday, a stay to accompany with it. It clearly was going to be appealed, no matter what the decision was, it would be appealed by either side. So the process will move forward, that's the democratic process.

"And the uncertainty of what is happening is creating a lot of chaos. That's my concern. This uncertainty is creating a lot of problems for us with the conflicting laws in the state of Utah, what the clerks should be doing, what the tax laws are going to be. There's a lot of issues there, so a stay would be appropriate until we finally have resolution. So I'm disappointed, but not surprised."

Sean Reyes, the new appointee to be attorney general, said: "I intend to continue to defend the laws of the state of Utah that have been passed by the citizens directly and through the legislative process. So far as the immediate strategy, is to file, if it has not already been filed, a motion to the 10th Circuit."

During arguments Monday before Shelby, Assist. Utah Attorney General Philip Lott argued that the court should impose a stay because the judge's order last week caught everyone by surprise and disrupted the status quo. And because the state will otherwise appeal, and all same-sex marriage licenses issued would be null and void, if decision is overturned by the 10th Circuit Court.

Lott said there was "a cloud of uncertainty over the same-sex marriages currently taking place."

"No one wins, if Utah's marriage laws are changed back and forth," he argued. "The status quo should remain in tact."

"There is a great irony in the fact that for Utah to be allowed to become a state, it was compelled by the federal government to define marriage as a union between one man and one woman."

He said that, traditionally, marriage has been defined as a man and a woman and that "opposite sex marriage serves society's interests."

Lott said Shelby in his ruling last week had "jumped the gun."

Shelby said to Lott: " We have a complicated state of affairs. We have people standing in clerk's offices right now. And the 10th Circuit waiting to see how this court rules."

Lott asked Shelby that if he did not issue a permanent stay, would he accept a temporary stay, until the 10th Circuit Court of Appeals can make a decision.

Peggy Tomsic, who represents three same-sex couples, told the judge: "Fundamentally, the state is asking you to go backwards."

Tomsic argued that the state's reasons for asking for a stay were no different than the reasons that initially used in previous arguments. She said that if those arguments were not compelling enough to win initially, they were not compelling enough to win a stay.

She called the state's presentation on Monday "a repackaged and dressed-up version of the arguments the court has already rejected."

"The status quo has changed," Tomsic added. "The cloud of confusion is in the minds of the state."

She noted that many licenses had been issued since Friday and couples continued to be married on Monday morning, even as the court hearing was proceeding.

"There is no cloud of confusion," Tomsic concluded. "There is a federal order explaining what the law in Utah is."

"Please do the right thing," she asked the judge in conclusion.

On Sunday, the 10th Circuit Court rejected the state's emergency request stay the ruling, saying it couldn't rule on a stay since Shelby hasn't acted on the motion before him.

But early Monday morning, acting state Attorney General Brian Tarbet filed an emergency request with a federal appeals court for a temporary stay to stop licenses from being issued. It, too, was rejected for procedural reasons.

Following Shelby's ruling on Monday morning, the state made a third request a stay from the appeals court.

Meanwhile across the state, same-sex couples were waiting in line as county clerks' offices opened their doors on Monday morning.

At the Salt Lake County clerk's office, the line for marriages wrapped around two floors, and there was an audible cheer when the door finally opened.

In Weber County, the first couple in line included a minister who had pushed to the front so he could get married and then officiate for others. Every time a couple leaves, license in hand, cheers erupt from those waiting outside. By 9 a.m., there were well over 100 people waiting in line for marriage licenses. The county had four desks issuing licenses, and had reportedly processed 35-40 by about 9:45 a.m.

Across the street at the Hilton, 44 marriages had been officiated in a conference room, as of 10 a.m.

The Summit County clerk's office also was reportedly issuing licenses. And there were 25 gay couples in line early Monday in at the Davis County clerk's office to be married, according to the Standard-Examiner.

In Cache County, the clerk's office was closed "until further notice," according to a statement issued by the county on Monday. The statement said the office was closed "to sort out the legal issues and confusion created in the wake of Judge Shelby's opinion." The statement noted that Gov. Gary Herbert had affirmed that the state would seek a stay of Shelby's order.

And in Box Elder County, where no gay couples had attempted to get a license and two sheriff's officers stood near the doors, officials said they would not issue a license if anyone tried. A staffer said the office did not want to violate state statues. They will take applications, but don't plan to issue licenses.

Carbon and Wayne counties also were not issuing same-sex marriage licenses, both saying they were waiting to see how Shelby rules on the stay request.

There were 22 couples married before 9 a.m. at the Washington County clerk's office, according to the Spectrum. And in Uintah County, three marriage licenses were issued, according to The Vernal Express.

The Grand County clerk's office was reportedly prepared to issue marriage licenses to same-sex couples, but no one had requested one as of about 9:30 a.m.

The Church of Jesus Christ of Latter Day Saints released a statement Monday regarding Judge Shelby's ruling on Friday legalizing same-sex marriage in Utah:

"The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman and we are hopeful that this view will be validated by a higher court."

On Saturday, Utah Gov. Gary Herbert advised county clerks to check with their attorney, council or commission about how to handle requests from same-sex couples for marriage licenses while Shelby weighed the stay request.

But Cliff Rosky, a University of Utah law professor and Equality Utah board member, said without a stay in place the clerks have only one option: Issue licenses.

"Right now there is a federal court order that stops the state from enforcing Amendment Three," he said. "County clerks, anyone in the state, is bound to comply with a federal court order. If they refuse to issue a license to a same-sex couple, they are in contempt of court."

Rosky became an ordained minister over the weekend and planned to be at the Salt Lake County Clerk's Office at 8 a.m. to perform wedding ceremonies at the request of same-sex couples who get a license. About 20 people were lined up in front of the county complex's doors as of 10 p.m. Sunday.

"It's like Black Friday for gay people," said MickieVee Cochrane, one of the women in line.

Park City government sent a tweet saying Mayor Dana Williams will be at the Summit County courthouse at 8 a.m. to officiate.

In his ruling Friday, Shelby found Utah's ban on same-sex marriage violated the due process and equal protection rights of same-sex couples who want to marry.

Tomsic said that courts that have considered the issue since the U.S. Supreme Court's decision in United States v. Windsor have refused to stay their rulings.

— Tribune reporters Jim Dalrymple II, Jessica Miller, Matthew Piper, Robert Gehrke, Erin Alberty and Matt Canham, as well as Donald W. Meyers and Robert Boczkiewicz, contributed to this story. —

If you go...

A hearing on the state of Utah's motion for a stay is set for 9 a.m. Monday at the federal courthouse, 350 S. Main St. in Salt Lake City.

If you plan to go, leave your cellphone, laptop computer, iPad, any recording devices, etc. in your car or at home. Only attorneys and court staff may bring electronic devices into the courthouse. Trib Talk: Same-sex marriage comes to Utah

Federal district Judge Robert Shelby's ruling that struck down Utah's Amendment 3 touched off a political firestorm and a mad rush by LGBT Utahns seeking marriage licenses to county clerks' offices across the state.

On Monday at 12:15 p.m., Jennifer Napier-Pearce discusses the legal, cultural and political repercussions of the opinion with University of Utah law professor Clifford Rosky, Q Salt Lake editor Michael Aaron and BYU law professor Lynn Wardle.

You can join the discussion by sending questions and comments to the hashtag #TribTalk on Twitter and Google+, or submit comments in the comment section below this story. > sltrib.com

Court • Utah AG's Office files third request for a stay.
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