The 10th Circuit Court of Appeals this afternoon denied Utah’s motion for a temporary stay of the federal court ruling which made same sex marriages legal in the state on Friday. (Here’s the actual ruling.) That doesn’t mean the 10th Circuit backs the lower court ruling ruling, only that it won’t prevent more marriages from taking place under the ruling until it hears the merits of the case.
[ed.note: I misinterpreted the Court’s ruling. The upshot is the same. But the reasoning is different. The State of Utah is saying that the district court isn’t moving quickly enough on its request for a stay so it’s jumping up to the appellate court with a request for extraordinary relief. The appellate court is saying, no, you’ve got to follow standard procedure. The request is premature. So they refused to take it up. The upshot is that the ruling is even more narrow and procedural than I realized.]
In practice that means that marriage certificates will continue to be issued tomorrow morning in the state and probably for some indeterminate period after that until the 10th Circuit rules on the state’s actual appeal.
What’s normally required to get such a stay is to show a likelihood of winning on appeal and a showing of “irreparable injury” from the ruling. So on its face the 10th Circuit’s denial would seem to suggest that the judges do not think the State of Utah is likely to prevail. But that is actually not clear. In their decision they note that the state did not even address these issues. So they are free to refile their petition and address those arguments.