The 10th Circuit Court of Appeals has denied the appeal by the state of Utah to issue a stay of the US District Court judge’s ruling to overturn the state’s ban on same-sex marriage. In its ruling it said:
A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively.
Clearly the court thinks the judge’s ruling is likely to be upheld. The state is now going to appeal to the US Supreme Court for a summary stay. The request will go to judge Sonia Sotomayor who oversees that circuit and she will have to decide on her own whether or not to issue a stay or to refer the request to the full court to decide.
But either way this gives a lot more time for couples in Utah to marry since the state cannot refuse to offer licenses in the interim.
While it prepares its Supreme Court motion, the attorney general’s office issued an advisory opinion telling county clerks that they could be held in contempt of court if they refused to issue marriage licenses. And [Governor] Herbert’s chief of staff sent a message telling state agencies that “where no conflicting laws exist you should conduct business in compliance with the federal judge’s ruling until such time that the current district court decision is addressed by the 10th Circuit Court.”