Utah Gov. Gary Herbert has sent a letter to all Utah county clerks regarding District Court Judge Robert Shelby’s ruling in Kitchen, et al v. Herbert et al that struck down the state’s Amendment 3 and other laws restricting marriage to heterosexual couples.
“I know this decision has caused uncertainty, and put you in a difficult position,” Herbert wrote. “As a result, many of you have requested guidance from the State as to how you should proceed.”
“Know that I have been working with the Attorney General’s Office since the decision was issued to resolve these uncertainties as soon as possible,” Herbert continued. “It is important to me that the law as passed by the people of this State in defense of traditional marriage is upheld.
“The Attorney General’s Office has filed a Motion for Stay Pending Appeal with both Judge Shelby and the 10th Circuit Court. Judge Shelby has scheduled a hearing on the motion for 9:00 a.m. Monday, December 23, 2013. Pending a determination of the stay, please consult with your county attorney and county council or commission for direction on how to proceed.”
Herbert has called Shelby an “activist judge” after the ruling and said the decision “has created a chaotic situation in our state that requires an expedited judicial resolution.”
“Utahns deserve a fair and complete judicial process, and I strongly encourage Judge Shelby to grant the motion for stay until the appeal can be heard and Utah’s constitutional defense of traditional marriage restored,” Herbert said.
Acting Attorney General Brian Tarbet said his office is “vigorously pursuing” an appeal and will present his case to Shelby on Monday at 9 a.m.
“If [Shelby] declines to rule at that time, we have already petitioned the U.S. Court of Appeals for the 10th Circuit for a temporary stay pending Judge Shelby’s decision,” Tarbet said in a statement.
The Restore Our Humanity team counsel, Peggy Tomsic, James Magelby and Jennifer Parrish replied to the state’s Emergency Motion for Temporary Stay, saying, “Appellants’ Emergency Motion for Temporary Stay poses no emergency” since Judge Shelby will hear the case on Monday.
They further state that the state neglected to respond to several items ordinarily considered during an appeal, including the likelihood of success on appeal; the threat of irreparable harm if the stay or injunction is not granted; the absence of harm to opposing parties if the stay or injunction is granted; and any risk of harm to the public interest.
“This Court should deny Appellees’ Motion for a stay,” the response says. “The District Court based its summary judgment order on extensive findings and conclusions regarding serious constitutional harms imposed by Utah Amendment 3 — including violations of and interference with the fundamental right to marry. This Court has held that the infringement of an important constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury.”
They also quoted Shelby’s ruling that “the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed.”
“In light of the harms identified by the District Court, this Court should treat as fatal to Appellees’ Motion their failure to address the factors that this Court ordinarily considers in deciding whether to issue a stay of a district court order,” the response read.