As you know, Judge Shelby refused to issue a stay to his ruling. And while he didn’t exactly call the state officials idiots, he did politely point out that is was their own fault that no stay was considered on Friday. (QSaltLake)
[State's attorney] Lott gave the example of then-District Judge Vaughn Richard Walker deciding to stay his ruling at the same time he ruled against California’s Proposition 8.
Shelby explained the difference between what happened in that court and why it didn’t happen in this court.
“There was no motion for a stay pending when I made my ruling,” he said. “When Judge Walker ruled, the plaintiffs had filed a motion to stay the ruling in case it didn’t come down their way.”
There was no such motion filed by the State of Utah before Shelby made his ruling.
“I had no authority to rule on a temporary stay,” he explained.
By the time that the state came in to ask for a stay, they were no longer protecting the status quo. Now the rules of the game had shifted and marriage was the status quo.
So the state has now requested that the Tenth Circuit issue a stay, and the courts gave the plaintiffs (our side) until 5:00 to file a brief as to why no stay should be granted. Unlike the DA’s office, it is highly likely that the arguments were prepared long ago and only needed to me amended to take on the ‘status quo’ arguments.
Meanwhile, today is the day that Governor Herbert decided to appoint a new State Attorney General. The previous Attorney General resigned in November in a corruption scandal and the marriage filings were conducted by acting Attorney General Brian Tarbut.
Interesting side note, acting Attorney General Brian Tarbut had been the commander of the Utah State National Guard having worked his way up the rank. Also in the Utah State National Guard for eight years, leaving about the time that Tarbut assumed control, was Robert Shelby, the judge in this case.
It is impossible to predict whether the Tenth Circuit will now grant the state a stay. Nor do we know when it is that they will decide.
However, we do know that they will be considering “the factors that must be established to be entitled to a stay pending appeal.” In other words “this is controversial and we don’t like it” will not be sufficient for these judges. It is expected that they will need to be convinced that the state has a good chance of winning and that if no stay is granted that the state will be harmed.
But irrespective of the stay or whether the ruling is reversed, It is estimated that around 800 couples have married on Friday and today.
And those who refused to issue licenses may find that obstinance is not always a winning trait. After being denied a license by a lesbian couple, the County Clerk of Utah County has been sued. Should a stay be granted and this couple were unable to get a license elsewhere, he may find himself with a rather serious civil rights lawsuit on his hands; there is no confusion whatsoever about whether an un-stayed ruling by a federal judge should be followed.