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Wednesday, December 25, 2013

Courts - 10th Circuit "Appeals Court Refuses to Halt Same-Sex Marriages in Utah" [Updated]

So reported Jack Healy late yesterday for the NY Times. Some quotes:

DENVER — A federal appeals court cleared the way on Tuesday for same-sex marriages to continue across Utah, denying an emergency request from state officials to halt a flood of unions that began after a lower-court judge declared the state’s ban on same-sex marriage to be unconstitutional. * * *

“This is one of the most conservative Republican states in the country,” said Clifford J. Rosky, a law professor at the University of Utah who served as a minister to wed same-sex couples on Monday. * * *

When [Judge Robert J. Shelby of Federal District Court] denied Utah’s request [for a stay], the state took its case to the appeals court in Denver, but the judges rejected Utah’s request. Mr. Rosky said the ruling suggested that the judges did not believe Utah was likely to succeed in its appeal defending the marriage ban, and that they saw no irreparable harm in allowing same-sex couples to wed.

[Upadated at 10 AM] Lyle Denniston is reporting at SCOTUSblog that:
The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages. State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.

In a two-page order, a two-judge motions panel of the Tenth Circuit found that a stay was not warranted, expressing some uncertainty that the state’s position against same-sex marriage would ultimately prevail in court. The judges set the case (Kitchen v. Herbert (Circuit docket 13-4178)) for expedited review, with a briefing schedule to be issued shortly.

A request to the Supreme Court for a delay of the ruling by U.S. District Judge Robert J. Shelby of Salt Lake City would go first to Justice Sonia Sotomayor, who is the Circuit Justice for the geographic area that includes Utah. She would have the option to act alone or to refer the issue to her colleagues.

Here is the brief 10th Circuit order denying the stay. A quote:
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. * * *

Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.

Posted by Marcia Oddi on December 25, 2013 09:21 AM
Posted to Courts in general