A little before 9 p.m. Thursday — less than a week since U.S. District Court Judge Robert Shelby found Utah’s ban on same-sex marriages unconstitutional — the nation’s largest LGBT rights group poked at the “incompetence” of the state’s acting attorney general in defending the amendment over the past week.
In an unusual show of confidence in the changed political dynamics of marriage equality battles, the Human Rights campaign tweeted a “thank you” from the group’s president, Chad Griffin, to the Twitter account of the Utah Office of the Attorney General.
The current acting attorney general for the state is Brian Tarbet, who took charge of the office after then-Attorney General John Swallow resigned in late November. Earlier this week, Gov. Gary Herbert named a third person, Sean Reyes, as the next attorney general, but Reyes will not take office until January.
“He’s owed our thanks for his general incompetence. With every fumble, bumble, and delay, even more gay couples get married,” an HRC staffer, when asked about the tweet, told BuzzFeed Thursday night of Tarbet.
It has, no doubt, been a difficult week for the AG’s office — already in turmoil because of Swallow’s resignation.
The attorney general’s office lost the case defending the 2004 marriage amendment in Shelby’s court on Dec. 20, although it already filed notice with Shelby’s court that it will be appealing the case to the 10th Circuit Court of Appeals.
Because the office had not sought a preemptive stay in case it lost at the trial court, however, Shelby had his decision go into effect that day. Although the state then asked for a stay on a telephone conference, Shelby said he only would consider it if submitted in writing. Tarbet’s office filed that paperwork, along with an emergency request for a temporary stay with the 10th Circuit.
Two days later, the 10th Circuit rejected an emergency stay, citing the incomplete nature of the request submitted by the attorney general’s office. On Monday, the state filed a second, more complete emergency request for a temporary stay with the 10th Circuit — which was denied in short order. At the same time, Shelby considered the request for a stay and denied it later that day.
Within hours, the state sent a request to the 10th Circuit, which ordered a response from the plaintiffs in the case by 5 p.m. Monday. At a few minutes past 5 p.m. Tuesday, the 10th Circuit again denied the stay request — saying it “considered … the parties’ arguments concerning the stay factors,” which include whether the state has a strong likelihood of success in its appeal of the opinion striking down the ban, and “conclude[d] that a stay is not warranted.”
That night — Christmas Eve — the attorney general’s office said it would ask the Supreme Court to issue a stay, and a spokesman told BuzzFeed it would “aim to file [T]hursday.” On Thursday morning, the office said the filing “may be delayed for a few days.” Fox 13 later reported Thursday that the Office of the Attorney General said the filing at the Supreme Court is to be expected Friday or Monday.