SALT LAKE CITY — The state plans to use outside legal counsel to seek a stay from the U.S. Supreme Court of last Friday's ruling striking down Utah's voter-approved constitutional amendment on marriage.
"We are looking for outside help to bolster our application to the Supreme Court and potentially for an appeal that will proceed with or without a stay," newly named Utah Attorney General Sean Reyes said Thursday.
Reyes' appointment as attorney general was announced Monday. He has not yet been sworn in.
Initially, the state had hoped to file for a stay Thursday. But Ryan Bruckman, acting spokesman for the attorney general's office, said the office is now "looking a little closer to a Monday filing."
Bruckman said the decision was made to bring in outside counsel to assist in the defense of Amendment 3 because of "the magnitude of the case" but declined to name the lawyers involved until their arrangement with the state is finalized.
Also Thursday, Utah County began issuing same-sex marriage licenses, nearly a week after U.S. District Judge Robert Shelby's ruling. A Lehi couple who filed a lawsuit earlier this week were among the first licensees.
Shelby struck down Amendment 3, which defined marriage as the union of one man and one woman. He said in a 53-page ruling that it violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
Hundreds of same-sex couples have since been married in light of the ruling. A stay would stop the marriages from occurring throughout the appeals process.
The attorney general's office filed a notice of appeal to the 10th Circuit Court of Appeals on Friday evening but also filed motions seeking an emergency stay pending the appeal before both Shelby and the appeals court.
Monday, Shelby declined to stay his ruling after finding that the state didn't show it would likely win its appeal of the case on the merits or that it suffers irreparable harm in allowing same-sex couples to marry.
In an order filed Tuesday, two 10th Circuit judges said they considered Shelby's decision and the arguments from attorneys on both sides of the case before determining "a stay is not warranted."
The U.S. Supreme Court is the last body that could currently issue such a stay.
I felt it was important that we do our due diligence and that we make sure we understand all of the facts. I knew things would happen in a timely manner. And really, when you look at it, it's only been a couple of days.
–Bryan Thompson, Utah County Clerk/Auditor
Utah County Clerk/Auditor Bryan Thompson said he chose to wait until the 10th Circuit Court of Appeals turned down the state's request for a stay before issuing licenses.
"I felt it was important that we do our due diligence and that we make sure we understand all of the facts," Thompson said. "I knew things would happen in a timely manner. And really, when you look at it, it's only been a couple of days."
He said once the decision to deny a stay was made by a court rather than a single judge, he was ready to follow other counties in the state and begin issuing licenses as the clerk's office reopened after the Christmas holiday.
"Some of the rest of us were just a little more methodical and careful. There's emotional issues and passions on both sides," Thompson said, emphasizing his decision was not influenced by any outside groups.
He said several marriage licenses had been issued Thursday morning to same-sex couples, including to Shelly Eyre and Cheryl B. Haws, who filed suit against the county after being turned down for a license earlier this week.
Haws said the couple likely won't follow through with the lawsuit at this point.
"We felt this was the transformation we were looking for," Haws said, adding that she appreciated Thompson's compassion and the kindness shown to the couple. "As of right now, we feel very happy."
Bruckman said all counties in the state are now issuing licenses to same-sex couples or soon will be, but he had no comment on the time it took some counties to comply with the ruling.
"Those are decisions that should be reached between county clerks and county attorneys," Bruckman said.
Box Elder and San Juan county officials also confirmed Thursday morning they will issue marriage licenses to all eligible people.
That means Piute is the only Utah county not issuing marriage licenses since the ruling, but a commissioner said that has nothing to do with the same-sex marriage issue.
County Commissioner Darin Bushman told KSL Thursday morning Piute County is not issuing any marriage licenses only because the county clerk, Valerie Brown, is out of town. She is expected to return at the end of the year.
Bushman said the county, which has approximately 1,500 residents, has only issued one marriage license in the last three months, anyway.
Tuesday, the Governor's Office sent out an email advising state agencies to consult with assistant attorney generals assigned to their area. It went on, urging that in the absence of conflicting laws, counties should comply with the district court's decision.
The AG's office has said those counties not issuing licenses could be in contempt of court.
Contributing: Marc Giauque, Nkoyo Iyamba, Lee Lonsberry, Richard Piatt and Shara Park