December 22, 2013hold a hearing on whether he should stay his decision and halt same-sex marriages pending the appeal of his decision. The case has already been appealed to the Tenth Circuit.
The Tenth Circuit has just declined to grant a temporary stay (requested by the state) before tomorrow’s hearing. The appeals court said that they must deny the stay because the state’s request doesn’t address the factors for a stay. They wrote that the state can re-file, if the filing complies with the Federal Rules of Appellate Procedure and the district court’s local rules:
Because the motion before us does not meet the requirements of the Federal or local appellate rules governing a request for a stay, we deny the motion. This denial is without prejudice should Defendants-Appellants file a motion for stay pending appeal that complies with Fed. R. App. P. 8 and 10th Cir. R. 8.1.
Along with the Tenth Circuit’s order, the plaintiffs have just filed their opposition to a stay in district court.
The plaintiffs point to the standard factors for granting a stay, first arguing that there was no likelihood of success shown by the state. The state defendants “have simply reiterated arguments already set forth in the briefs submitted during the summary judgment proceedings” and those arguments “were already carefully explored at oral argument, thoughtfully analyzed by the Court, and properly decided in a lengthy, clear, and careful decision.” Beyond that, the cases cited as evidence that the state will succeed in its appeal are all pre-Windsor cases.
Secondly, the state has to show they will face irreparable harm without a stay of the decision. The plaintiffs argue that “because many same-sex couples have already been married in Utah at the time of this filing, the State Defendants’ burden is to show that there would be irreparable harm from additional same-sex marriages being performed” and it’s hard to see, according to the filing, how the state faces irreparable harm, given that “the State failed [according to Judge Shelby’s findings] to show any relationship, let alone a rational relationship, between the purported state interests and allowing same-sex couples to marry.”
The state had argued that absent a stay, there would be a cloud of uncertainty on the status of newly-performed same-sex marriages. But the plaintiffs counter that, “any such abstract “harm” alleged by the State Defendants cannot justify depriving Plaintiffs and other same-sex couples of their constitutional rights, or outweigh the real, concrete injuries resulting to the Plaintiffs which the State Defendants have admitted in these proceedings.”
The state defendants had argued that they suffer irreparable harm whenever the citizens of a state enact something and it’s struck down. In a footnote, the plaintiffs respond that “[t]he State does not suffer irreparable harm where the law that is enjoined is likely unconstitutional. Otherwise, any time a state were seeking a stay of an injunction of an unconstitutional law, the state would win. This would unduly tip the scale in favor of the government in any case challenging a government enactment, and against the constitutional rights of the citizenry.”
And further, “this Court in its decision already recognized that its decision will not create any problem for the state.”
A stay would also not preserve the status quo, because “the status quo in Utah is that same-sex couples are marrying and that many married same-sex couples live in Utah and their marriages currently must be recognized.”
And the plaintiffs would be irreparably harmed if a stay were granted: “Continuing deprivation of Plaintiffs’ (and others’) fundamental right to marriage and equal protection of the law constitutes irreparable harm.” The defendants “ignore that every day a citizen is deprived of constitutional rights causes irreparable harm, but they ignore their own admission of the actual harm Plaintiffs have suffered.”
And last, the public interest is best upheld when Constitutional rights are protected. The plaintiffs point to other cases in which courts declined to stay marriages post-Windsor, because of the conclusion that the state was unlikely to succeed in upholding the ban.
The district court will decide whether to grant a stay tomorrow. The hearing is scheduled for 9AM.
Thanks to Kathleen Perrin for these filings