Federal Judge Denies Utah’s Request To Stay Order Allowing Same-Sex Marriage


Federal District Court Judge Robert Shelby, who ruled on Friday that Utah’s law banning same-sex marriage was unconstitutional, has denied the state’s request to stay the effect of his ruling pending its resolution on appeal:

A federal judge in Utah — who last week issued a controversial ruling allowing same-sex marriages — on Monday denied the state’s request for a stay.

State attorneys had argued before U.S. District Judge Robert J. Shelby that same-sex couples who marry in Utah would be irreparably harmed if the state’s continuing efforts to overturn the judge’s ruling succeed and those marriages are later invalidated.

In denying the request for a stay, Shelby agreed with an attorney representing three same-sex couples in the lawsuit that challenged Amendment 3, saying the state had only regurgitated the arguments he had already thrown out.

But state attorneys wasted no time in filing a request for a stay — their third such request since Friday — with the 10th Circuit Court in Denver.

The state’s latest request asks the 10th Circuit Court to grant an emergency stay, stopping same-sex marriages immediately, even before the appeals court issues a ruling on the state’s motion to halt marriages pending an appeal.

The hearing before Shelby began at 9 a.m. to hear the state’s request for a stay. Shelby retired to deliberate at about 10:20 a.m. He issued his decision at about 11:15 a.m.

Meanwhile, hundreds of same-sex couples resumed obtaining marriage licenses on Monday.

But while some clerk’s offices were issuing hundreds of marriage licenses to same-sex couples, others were not issuing any — indicating they wanted to see how Shelby would rule on the state’s request for a stay.

Judge explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties who don’t comply are breaking the law.

State officials had filed the request over the weekend, but had also filed simultaneously filed requests for a stay with the 10th Circuit Court of Appeals which were denied primarily for procedural reasons:

The judge made his decision effective immediately.  The state sought an emergency stay of the decision, but before the district court ruled on it, the state sought an extraordinary interim emergency stay from the 10th Circuit pending the district court’s decision on its request for stay.  Over the weekend, the 10th Circuit denied the interim request, essentially telling the state there was no mechanism in the federal rules for it.  (UPDATE: A second request for stay in the Tenth Circuit was also denied.  Thanks to commenter JHW27 for the info.)  So the state is back in the district court this morning to have its emergency stay request heard.  The hearing begins at 9 a.m. (Mountain), and the judge can be expected to rule quickly, perhaps at the end of the hearing or later today.  If he does not grant the stay, the state will be back in the 10th Circuit seeking a stay from the appeals court.

I’d expect that the state will file that request sometime this afternoon, but its unclear when the 10th Circuit might rule on the matter.If it decides to rule just based on the pleadings filed by both sides, we could see a ruling sometime today or tonight. If it wishes to hold a hearing, it would be possible to hold a hearing tomorrow and rule before the end of the day. Alternatively, given the holiday, the Court could wait until the 26th or 27th to decide the matter. If the 10th Circuit declines the stay then the state could theoretically take the matter to the Supreme Court but it would extraordinary for SCOTUS to involve itself at this stage of the proceedings. Quite obviously, though, if the stay is ultimately denied then gays and lesbians will continue to be permitted to get married in Utah until a Court has ruled otherwise.



FILED UNDER: Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. michael reynolds says:

    Mmmm, smell the panic in the beehive state.

    Even with a quick stay they’ll have thousands of married gay couples. I sense the impending collapse of all moral order followed by the rise of Satan and the beginning of the End Times. Wait, is that the Beast I see? It bears a mark! 6. . . 6. . . 2? WTF?

  2. JohnMcC says:

    Do I understand the original ruling correctly: That same-sex couples cannot be singled out as a class in order to be denied the right to marry, based on the Windsor decision? If so, is not same-sex marriage soon going to be legal in every jurisdiction, every state, where a plaintiff can be found to bring suit in Federal Court? Pretty amazing, eh!

  3. HarvardLaw92 says:


    That was the general consensus that we saw post Windsor. It’s not much of a stretch to take a ruling predicated in equal protection which states that the federal government can’t deny access to marriage benefits to homosexuals, and extrapolate from that premise that the states can’t do it either.

    The thing I found interesting about Shelby’s ruling is that he went out fo his way to delineate a clearly defined line of reasoning from both an equal protection and a due process perspective.

    Given that this is a pure case, in contrast to the convoluted mess that was Hollingsworth, I’m having a hard time seeing how the 10th might get around accepting his findings of law / facts as being valid.

  4. Gromitt Gunn says:

    Perhaps the second best part of this ruling (the first being all of the new marriage licenses) is that Judge Shelby also took pains to include Scalia’s signs, portents, and lamentations in Windsor and Lawrence v Texas in his rulng, and point out how the End Times are coming along nicely precisely as predicted. Hah!

  5. Stonetools says:

    And in Ohio, a judge found that gay marriage has to be recognized for death certificates. Looks like holes are springing up all over the dam. Seems only a matter of time before it bursts. I give it ten years at most before there is a sweeping Supreme Court decision making marriage equality the law of the land.

  6. michael reynolds says:


    A house divided against itself cannot stand. I believe this government cannot endure, permanently, only half free.*

    *Apologies to a talented writer named Lincoln.

  7. HarvardLaw92 says:

    Update on Utah: Shelby denied Utah’s motion for an emergency stay at the district level today.

    Utah immediately went back to the 10th Circuit and filed again, and the 10th Circuit denied the application again, this time on the merits. This was the best possible outcome at this point in time.

    The short version is that, absent a stay from SCOTUS (which happens so rarely as to be non-existent), Utahn’s will be enjoying access to marriage for at least the several months it will take for the case to get onto the appellate calendar.

  8. David in KC says:

    The states are having a tough time coming up with a reasonable state interest in discriminating against same sex couples that aren’t based purely on religious beliefs. The back up argument of “ewww, icky” probably won’t fly either.

  9. Gold Star for Robot Boy says:

    @michael reynolds:

    Wait, is that the Beast I see? It bears a mark! 6. . . 6. . . 2? WTF?

    Actually, that’s the Neighbor of the Beast.

  10. KM says:

    @Gold Star for Robot Boy:

    Actually, that’s the Neighbor of the Beast.

    Access to all the best parties, none of the Brimstone. Too bad about the booze though….