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Same-sex marriages happening across Utah as Shelby declines to stay his ruling

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As couples are lined up outside county clerk offices across the state — and with the line in Salt Lake County wrapping around all three levels of the Salt Lake County Complex South Building — District Judge Robert Shelby declined a state motion to stay his decision.

In a hearing this morning, delayed by a ruling from the 10th Circuit Court of Appeals, state attorneys presented much of the same arguments they did over three weeks ago as reasons for Shelby to stay his ruling.

“This ruling will not be the final word on whether marriage is a Constitutional right,” Utah lawyer Philip Lott testified. “This court has imposed its own view of marriage over the desires of the people of Utah.”

He said the state is entitled to have the case reviewed without the “chaotic situation” that the marriages are causing and urged the judge to “take a more orderly approach than the current frenzy.”

“Granting the stay simply preserves the status quo,” he read from his motion.

Shelby interrupted, asking Lott, “What is the status quo?” To which Lott fumbled for words.

Plaintiffs’ counsel Peggy Tomsic far from fumbled for words.

“The status quo has changed,” Tomsic said. “When  county clerks began issuing licenses and same-sex couples began getting married, that became the new status quo.”

Tomsic panned the state attorneys for failing to come up with any more testimony than what they had presented in the Dec. 4 hearing, nor in their legal responses since the case was first filed.

“The state is asking you to look backward — to grant a stay on the same arguments they gave in four hours of testimony,” Tomsic testified. “That is the same arguments which you soundly rejected in your ruling.”

“Both sides were given ample opportunities to put their best arguments forward,” she continued. “A stay or injunction requires more than a reargument of the same issues brought before the court.”

“The ‘cloud of confusion’ the defendants talk about occurs only in their own minds, not anyone else’s,” she said.

“To decide to stay the ruling is like going back to all of those married and trying to marry and saying, ‘just kidding!'”

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.

Tomsic said the lack of the state filing a stay and the fact the state didn’t put in writing a motion to stay until well after business hours of all county clerks infers that the state didn’t see an emergency, and therefore an emergency stay at this time is not called for.

At the end of the testimony, Salt Lake County Deputy District Attorney Darcy Goddard brought a technical issue that concerned county clerks across the state. Shelby’s ruling did not specifically mention a provision in Utah code that specifically mentioned a clerk could not issue a marriage license to a couple if they were not a man and a woman.

“We [Salt Lake County] took your ruling to be addressing any and all laws that blocked same-sex marriage,” she testified. “We are just hoping you will clarify the ruling.”

Shelby called for a recess while he deliberated.

To Goddard’s question, Shelby stated upon his return that, “To the extent I was not clear in my ruling, my intent was to find that the laws of the state of Utah that deny people of the same sex from marrying are unconstitutional. Those laws cannot be applied. I didn’t attempt to identify all of the laws on the books that do violence to the Constitutional rights of all people in my ruling.”

In the end, Shelby said that the state failed to carry its burden in showing why a motion to stay his ruling should be approved, meaning that his ruling remains in effect.

After the hearing, the state put a new motion for a temporary stay to the 10th Circuit Court of Appeals, which has given the plaintiffs’ legal team until 5 p.m. today to reply, meaning the court cannot address the motion at least until after most city clerks offices are closed for the day.

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