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Utah headed to Supreme Court after appeals court refuses to stop same-sex weddings

Jim Urquhart/Reuters

Jax Collins and Heather Collins were married Monday at the Salt Lake County Government Building after a federal judge Robert Shelby upheld his own order making same-sex marriage legal in Utah.

Utah officials were busy Tuesday night planning an emergency appeal to the U.S. Supreme Court after a federal appeals court denied their request to stop same-sex marriages while they try to overturn a judge's ruling legalizing them.

In a two-page order (.pdf) entered late Tuesday in Denver, two judges on the 10th U.S. Circuit Court of Appeals declined to grant Gov. Gary Herbert's request for a stay halting the marriages while Utah pursues its appeal. 

Herbert's office didn't return a call for comment, but the state attorney general's office — which filed the motion on his behalf — said it would seek an emergency stay with the Supreme Court as early as Thursday. That motion would be heard by Justice Sonia Sotomayor, who has jurisdiction over the 10th Circuit.

Herbert asked for a stay Monday after U.S. District Judge Robert J. Shelby upheld his own ruling that Utah's ban on same-sex marriages is unconstitutional.

The appeals judges, Robert E. Bacharach and Jerome A. Holmes, fast-tracked Utah's appeal, but they said they wouldn't stop the marriages in the meantime, writing that the state would have a tough time proving that letting the marriages go ahead would cause "irreparable harm" or that it had a good shot at winning its appeal.

Bacharach was appointed to the court by President Barack Obama; Holmes was appointed by President George W. Bush. 

While it prepares its Supreme Court motion,  the attorney general's office issued an advisory opinion telling county clerks that they could be held in contempt of court if they refused to issue marriage licenses. And Herbert's chief of staff sent a message telling state agencies that "where no conflicting laws exist you should conduct business in compliance with the federal judge's ruling until such time that the current district court decision is addressed by the 10th Circuit Court."

The state Workforce Services Department said it would recognize the marriages as establishing eligibility for food stamps and other benefits.

Hundreds of same-sex couples raced to county clerks' offices to get wedding licenses after Shelby's ruling Monday. Salt Lake County alone issued 353 licenses Monday, NBC station KSL of Salt Lake City reported — 4½ times its previous single-day record for marriage licenses.

The Rev. Curtis Price was waiting in the lobby of the Salt Lake County Government Building to marry Shauna Griffen and Brooke Shepherd, who'd spent the night waiting in line wearing matching shirts proclaiming "Love conquers hate."

"It was a long night. We were worried," Griffen told KSL. "I had faith in Salt Lake County — they came through."

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