Who is harmed?

When the judge in Calif. ruled on the same-sex marriage case back in 2009, he immediately added a stay. He knew it would be appealed and didn't want the problem of same-sex couples having their marriages dissolved.

Law professor David Cruz lays out the four factors that are considered before a stay is granted:
* Is the party requesting the stay likely to succeed in appeal?
* Will the party requesting the stay suffer irreparable harm if the stay isn't granted?
* Will there be lack of harm to the opposing party if the stay is granted?
* Will there be any risk of harm to the public?

In the Calif. case the answer to the first question was a big unknown. Nobody knew how the Supremes were going to rule. As for the third question, would there be more harm in allowing same-sex couples to marry and then dissolving the marriages or in not allowing them to marry at all? So in 2009 a stay was appropriate.

But times are different and the Supremes have ruled. So when the Utah Governor and Attorney General asked the 10th Circuit Court for a stay in same-sex marriages the result was quite different. The Court said the party requesting the stay hadn't proven they or the public would suffer harm. So please go ask the district court judge and if you come back please provide more information.

Update: correction here.

The state asked the 10th Circuit, um, perhaps you can issue a stay until the district court judge is asked about a stay? The reply: We told you to ask him first.

One of the judges refusing the stay was Judge Jerome Holmes. He's black and so conservative he's described as the "next Clarence Thomas."

So the state went to Judge Shelby of the district court to get a stay. They claimed there is a "cloud of uncertainty" because all those same-sex couple marriages might be overturned on appeal. Peggy Tomsic, the lawyer on behalf of the gay couples behind the case, wasn't impressed

Tomsic argued that the state’s reasons for asking for a stay were no different than the reasons that initially used in previous arguments. She said that if those arguments were not compelling enough to win initially, they were not compelling enough to win a stay.

Judge Shelby wasn't impressed either. The hearing was 70 minutes and his denial of a stay was issued less than an hour later.

A commenter wonders if Shelby would have been more willing to declare a stay if the state and the Mormon church hierarchy hadn't said nasty things about the "activist judge" over the weekend. Judges do not like to be dissed.

All that means in the meantime marriages in Utah will proceed. There were long lines in county clerk offices early this morning. In Salt Lake City the line wrapped around the building's atrium -- and around the atrium's balcony. Alas, there are a handful of counties that are refusing to issue marriage licenses.

I've started to read Judge Shelby's ruling on the marriage question. Both sides requested summary judgment, meaning the facts are so obvious you can rule in my favor without bothering with a trial. From what I've read I get the impression that Shelby ordered the trial to proceed on January 7th, but through his preparatory work discovered he didn't need a trial after all. That's why the ruling caught everyone off-guard.