After the US District Court judge Robert Shelby declared on Friday that the Utah ban on same-sex marriage was unconstitutional, marriage licenses started being issued while the government filed a motion with him asking him to stay his order pending appeal. The government, perhaps fearing that many more same-sex couples would get married while the judge considered their motion for a stay, also filed an emergency motion with the 10th Circuit Court of Appeals asking them to immediately impose a stay.
But yesterday the Appeals Court rejected the government’s request, saying that the proper procedure was that they had to await the outcome of the judge’s decision. Only if the judge denied their motion for a stay could they ask the Appeals Court to impose a stay. And just a few minutes ago, Shelby denied the request for a stay, which means that the Utah state government has now to go back to the Court of Appeals asking them for an emergency stay.
As a result, licenses will continue to be issued, that started with the opening of business today at 8:00 am Utah time. Since judge Shelby was scheduled to hear the case for a stay at 9:00 am, the worst-case scenario was that there would be a window of one hour for couples to get licenses to get married. They have been lining up in large numbers. Now they will have more time until the Appeals Court rules.
These licenses are likely to remain valid even if a stay is granted. Whether the marriages will still be legal if the ruling is overturned later is something that is unclear.