Two judges of the 10th Circuit Court of Appeals held Saturday that they would not grant Utah officials' emergency request to stop same-sex couples from marrying at this time.
The denial means that a Friday court order striking down the state's ban on same-sex couples marrying — leading at least some counties to begin granting marriage licenses to same-sex couples — likely will remain in place at the beginning of office hours Monday, meaning more marriages at that time.
Judges Jerome Holmes and Robert Bacharach, in an order signed by court clerk Elisabeth Shumaker for the court, held that the because the state's request "does not meet the requirements of the Federal or local appellate rules governing a request for a stay," the court was denying the motion.
"Defendants-Appellants acknowledge that they have not addressed, let alone satisfied, the factors that must be established to be entitled to a stay pending appeal," the court held. The factors include a showing by the party asking for a stay that they are likely to succeed on appeal, that they would suffer "irreparable injury" if they do not get a stay, that other parties would not injure other parties, and an assessment of where the "public interest" lies.
The judges wrote that the state could refile a similar motion at a later point so long as it complied with the court's rules. Holmes was appointed to the appellate court by President George W. Bush; Bacharach was appointed by President Obama.
The Sunday developments followed a Friday ruling from U.S. District Court Judge Robert J. Shelby striking down the state's 2004 amendment banning same-sex couples' marriages, which led couples in Salt Lake City to begin marrying. Before the day was out, though, Utah Acting Attorney General Brian Tarbet had filed requests with Shelby and with the 10th Circuit Court of Appeals, asking for the marriages to be stopped.
The plaintiff same-sex couples opposed the request before the 10th Circuit on Saturday and filed opposition to the request before Shelby on Sunday afternoon.
In their filing before the trial court, the plaintiff same-sex couples argued against the state's request to put a hold on his order pending the state's appeal of the case to the 10th Circuit. The plaintiffs argue that the state has made no "strong showing" that it is likely to succeed in its appeal of the case, that the state is not harmed without a stay, that the public interest is harmed by a stay and that the plaintiffs would be "irreparably harmed" by a stay.
"The State Defendants' [sic] trivialize Plaintiffs' constitutional rights when they argue that a stay 'at most' would lead to a delay in their ability to exercise those rights," the lawyers for the couples write. "Not only do the State Defendants ignore that every day a citizen is deprived of constitutional rights causes irreparable harm, but they ignore their own admission of the actual harm Plaintiffs have suffered."
Shelby is due to consider the state's request for a stay pending appeal at 9 a.m. Monday. If he denies that request, it is likely that the state will ask the 10th Circuit grant a stay while it considers the appeal of the case.
Read the plaintiff's opposition at the trial court to the state's request for a stay pending appeal:
Update at 12:05 p.m. Monday, Dec. 23, 2013: In response to a second emergency request for a temporary stay, filed early Monday by Utah's Acting Attorney General, the two-judge panel that heard the first request also denied the second request, noting it would accept a "renewed request" for a stay pending appeal "if the district court denies Defendants-Appellants' motion."
