The last of the Utah counties that were holding out on issuing marriage licenses to same-sex couples reversed course Thursday and decided to hand out licenses to all eligible applicants.
Officials for the four holdouts — Box Elder, Utah, Piute and San Juan counties — said they made the decision to offer licenses to same-sex couples.
County clerks say they had little choice after the 10th U.S. Circuit Court of Appeals on Tuesday declined to intervene and halt gay marriage. U.S. District Judge Robert Shelby ruled last week that Utah’s ban on gay marriage was unconstitutional, sending gay couples rushing to get licenses.
The state plans to take its fight against gay marriage to the U.S. Supreme Court as early as today while it prepares an appeal of Shelby’s ruling, said Ryan Bruckman, a spokesman for the Utah attorney general’s office.
Bruckman has said counties could be held in contempt of federal court if they refused to comply.
The holdouts said they decided to obey Shelby’s ruling despite reservations and questions about their legal liability. In Utah it is a misdemeanor for county clerks to sanction a same-sex marriage.
San Juan County Clerk Norman Johnson said “what finalized it for me” was Gov. Gary Herbert’s order to state agencies to comply with Shelby’s decision and change procedures for the delivery of state services. To that end, the Utah Department of Workforce Services is recognizing gay couples for food stamp and welfare benefits.
For Johnson, Herbert’s directive was the “final straw,” together with a refusal Tuesday by the Denver-based appeals court to stay Shelby’s decision pending an appeal from state lawyers.
The Christmas Eve denial by the 10th Circuit panel was notable because it hinted at skepticism of the state’s arguments.
To obtain a stay, the state had to show that it had a substantial likelihood of winning its eventual appeal and that allowing the marriages to continue in the meantime would cause “irreparable harm” to the state’s interests. The judges seemed unconvinced on both counts.
Since Shelby’s ruling, hundreds of same-sex couples have wed in Utah — weddings that in theory could be invalidated if the decision is eventually overturned.
State officials may face an uphill battle in persuading the U.S. Supreme Court to step in at such an early stage. It’s common for the justices to put a ruling on hold once they’ve decided to review a case. But in this case, the state’s appeal hasn’t even been argued to the lower appellate court. The justices could simply decline Utah’s request to get involved and wait to see how the lower court handles the matter.
If that happens, same-sex marriages in Utah probably would continue for weeks or months. The appeals court panel that denied the stay Tuesday said the state’s appeal would be expedited. But even in a hurried-up status, an appeals court ruling might not come until early spring.
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