Appeals court declines to issue stay that would halt gay marriages in Utah

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SALT LAKE CITY — A federal appeals court ruled on Tuesday that gay marriages can continue in Utah, denying a request from the state to halt same-sex weddings until the appeals process plays out.

The 10th U.S. Circuit Court of Appeals rejected the state's request for an emergency stay on a federal judge's ruling that struck down Utah's voter-approved constitutional amendment defining marriage as the union of one man and one woman. U.S. District Judge Richard Shelby ruled that it violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

The appeals court said in its short ruling that a decision to put gay marriage on hold was not warranted, but said it put the case on the fast track for a full appeal of the ruling.

Shelby refused the state's first request to put a halt to the marriages Monday.

Utah's last chance to temporarily stop the marriages would now be the U.S. Supreme Court. That's what the Utah Attorney General's Office is prepared to do, said spokesman Ryan Bruckman. "We're disappointed in the ruling, but we just have to take it to the next level," he said.

Gov. Gary Herbert's office declined comment on the decision.

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Provo — As of Tuesday morning, 25 of Utah's 29 counties have begun issuing marriage licenses to gay couples — Box Elder, Piute, San Juan and Utah were the holdouts.

Before the ruling denying the emergency motion to stay came out late Tuesday afternoon, Utah County Clerk Bryan Thompson said in a written statement that he was waiting for further clarification from the state and the county attorney and a ruling from the 10th circuit court of appeals before issuing marriage licenses to gay couples. But the attorney general's office said they had advised county clerks to confer with their county attorney to make sure they are in compliance with Judge Shelby's ruling to avoid being in contempt of court.

The office closed at noon for the holiday.

To protest the County Clerk's refusal to issue marriage licenses to gay couples, a few people were out in Provo to publically show their support for Judge Shelby's ruling and the gay couples who are now allowed to marry in Utah.

"I'm just really excited since Friday when I heard the news. A lot of people have been waiting many, many years, and we all thought this would be the last state," said supporter Zeldy Zabriskie. "So we're out here to show our support."

About a dozen protestors stood on University Avenue for a couple of hours — some said they are straight but want to support their gay friends who want to be married in Provo.

"I'm here to support my brothers and sisters and my neighbors in this valley that want to be married that are LGBT people," said supporter Rebecca James.

In its ruling, the court explained the four factors it considered when deciding whether or not to issue the stay:

1. The court considered the likelihood of the state's success in its 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.

4. Any risk of harm to the public interest.

After considering those four things, the appeals court concluded that a "stay is not warranted," saying "we deny … emergency motions for a stay pending appeal and for a temporary stay."

The court did put the state's appeal on the fast track stating, "We direct expedited consideration of this appeal."

A spokesman for the attorney general says his office will file an appeal with Supreme Court Justice Sonya Sotomayor first thing Thursday morning.

Meanwhile, Governor Gary Herbert's office declined to comment tonight on this latest ruling.

The appeals court ruling means county clerks can continue to issue marriage licenses to gays and lesbians. About 700 gay couples have obtained marriage licenses since Friday, with most coming in Salt Lake County.

"Until the final word has been spoken by this Court or the Supreme Court on the constitutionality of Utah's marriage laws, Utah should not be required to enforce Judge Shelby's view of a new and fundamentally different definition of marriage," the state said in a motion to the appeals court.

Shelby's decision to strike down a law passed by voters in 2004 drew attention given Utah's long-standing opposition to gay marriage.

In court Monday, assistant attorney general Phil Lott repeated the words "chaotic situation" to describe what has happened in Utah since clerks started allowing gay weddings. He urged the judge to "take a more orderly approach than the current frenzy."

"Utah should be allowed to follow its democratically chosen definition of marriage," he said of the 2004 gay marriage ban.

That confusion stretched to county clerks in Utah, some of whom were refusing to issue marriage licenses to gay couples, even though they could face legal consequences.

The Utah Attorney General's Office warned counties they could be held in contempt of federal court if they refuse to issue the licenses.

Bruckman said the office was not giving legal guidance to clerks' offices.

The U.S. Attorney's Office said prosecution of county clerks is unlikely. The holdouts wouldn't face sanctions unless the plaintiffs who sued Utah asked the judge for a contempt finding, said Melodie Rydalch, a spokeswoman for U.S. Attorney David Barlow.

In the meantime, state agencies have begun trying to sort out how the gay marriages may impact state services.

Herbert's office sent a letter to state agencies Tuesday afternoon advising them to comply with the judge's ruling or consult the attorney general's office if the ruling conflicts with other laws or rules.

The Utah Department of Workforce Services, which administers programs such as food stamps and welfare, is recognizing the marriages of gay couples when they apply for benefits, spokesman Nic Dunn told The Associated Press on Tuesday.

It's unclear whether Utah will allow married same-sex couples to jointly file their state income tax returns next year, as they will be able to do for federal returns.

Charlie Roberts, a spokesman for the Utah State Tax Commission, said the agency still needs to consult the Utah Attorney General's Office about the issue.

In October, the commission stipulated that because Utah did not recognize same-sex marriages, same-sex couples who had married out of state could not file jointly in Utah.

The state income tax forms do not currently require filers to specify gender, so it's possible same-sex couples could have already filed jointly in previous years, but Roberts said the commission has never been aware of such as case.

Utah is the 18th state where gay couples can wed or will soon be able to marry. The legal wrangling over the topic will likely continue for months. The 10th Circuit will likely hear a full appeal of the case several months from now.

Contributing: Michelle Price and Sam Penrod

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