Kitchen et al v. Herbert et al
ORDER re 94 Defendant's MOTION to Stay re 90 Order on Motion for Summary Judgment, Memorandum Decision filed by John Swallow, Gary R. Herbert. Signed by Judge Robert J. Shelby on 12/23/2013. (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
DEREK KITCHEN, MOUDI SBEITY,
KAREN ARCHER, KATE CALL, LAURIE
WOOD, and KODY PARTRIDGE,
MOTION TO STAY
GARY R. HERBERT, JOHN SWALLOW,
and SHERRIE SWENSEN,
Case No. 2:13-cv-217
On December 20, 2013, the court granted summary judgment for the Plaintiffs in this
lawsuit. (Order, Dec. 20, 2013, Dkt. 90.) The court held that provisions in the Utah Code and
the Utah Constitution1 that prohibited same-sex marriage (collectively, Amendment 3) were
unconstitutional because they denied the Plaintiffs their rights to due process and equal
protection under the Fourteenth Amendment of the United States Constitution. The court
enjoined the State of Utah from enforcing Amendment 3 to the extent that it prohibited a person
from marrying another person of the same sex. The court’s Order did not include a stay of its
judgment as none had been requested by the State.
The court had a telephone conversation with counsel from both parties a few hours after it
The court’s Order specifically mentioned Sections 30-1-2 and 30-1-4.1 of the Utah Code
and Article I, § 29 of the Utah Constitution. The court’s Order also applies to any other Utah
laws that prohibit same-sex couples from marrying.
issued its Order. The State represented to the court that same-sex couples had already begun
marrying in the Salt Lake County Clerk’s Office and requested the court to stay its Order of its
own accord. The court declined to issue a stay without a written record of the relief the State was
requesting, and asked the State when it was planning to file a motion. The State was uncertain
about its plans, so the court advised the State that it would immediately consider any written
motion as soon as it was filed on the public docket. The State filed a Motion to Stay later that
evening. The court ordered expedited briefing on the State’s Motion and set a hearing for 9:00
a.m. on December 23, 2013. The State requested in its Reply Brief that, if the court denied the
State’s Motion to Stay, the court order a temporary stay of its Order to allow the Tenth Circuit to
make its own determination about whether a stay should be issued.
Having carefully reviewed the parties’ briefing and oral arguments, and for the reasons
discussed below, the court DENIES the State’s Motion to Stay and the State’s request for a
Rule 62(c) of the Federal Rules of Civil Procedure provides: “While an appeal is pending
from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the
court may suspend, modify, restore, or grant an injunction . . . on terms that secure the opposing
party’s rights.” Fed. R. Civ. P. 62(c). The purpose of a stay is to preserve the status quo pending
an appeal. See McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996). When
considering a motion to stay pending appeal, the court considers four factors:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The court analyzes each of these factors below.
The State Has Not Shown that It Is Likely to Succeed on Its Appeal
The State argues that the court should stay its judgment because the State is likely to
succeed on appeal. But the majority of the State’s assertions in support of its argument are the
same assertions the State made in its Motion for Summary Judgment. For the same reasons the
court denied that motion, the court finds that the State has not submitted any evidence that it is
likely to succeed on its appeal. The court granted summary judgment for the Plaintiffs on two
separate grounds. First, the court found that Amendment 3 violated the Plaintiffs’ fundamental
right to marry. Second, the court found that Utah’s prohibition on same-sex marriage was a
violation of the Plaintiffs’ equal protection rights.2 The State can only succeed on its appeal if
the Tenth Circuit rejects both of these holdings, and the State has not provided any reason to this
court to suggest that the court overlooked crucial cases or other issues in its Order.
The only new argument the State makes to challenge the court’s reasoning is its assertion
that the court misconstrued the case of United States v. Windsor, 133 S. Ct. 2675 (2013), because
the court cited portions of the Honorable Antonin Scalia’s dissenting opinion. The court is not
persuaded by the State’s argument. Although Justice Scalia clearly disagreed with the outcome
in Windsor and believed the majority of the Supreme Court had decided the case wrongly, his
opinion about the reasoning underlying Windsor and the possible effects of this reasoning in
future cases is nevertheless perceptive and compelling. The court therefore cited Justice Scalia’s
The court applied rational basis to its analysis of the Plaintiffs’ equal protection claim,
but noted that the claim was also subject to heightened scrutiny because Amendment 3
discriminated against the Plaintiffs on the basis of their sex.
dissent not as binding precedent, but as persuasive authority.
For these reasons, the court finds that the State has not carried its burden to make a strong
showing that it is likely to succeed on appeal.
The State Has Not Shown that It Will Suffer Irreparable Harm
The State argues that it will suffer irreparable harm for three reasons. First, the State
contends that Utah has recognized only opposite-sex marriage for over one hundred years and
that it must therefore be cautious about any changes to this approach. The court addressed this
argument in its Order and found that neither the State’s asserted need to proceed with caution or
its interest in preserving its previous laws about marriage were sufficient to withstand rational
Second, the State maintains: “[I]t is clear that a state suffers irreparable injury whenever
an enactment of its people . . . is enjoined.” Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719
(9th Cir. 1997) (citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers)). The Plaintiffs point out that both cases cited by the State are
inapposite because they involved statutes that the court considering the stay believed were valid.
See Wilson, 122 F.3d at 719 (holding that a stay of the Ninth Circuit’s mandate would be
“tantamount to extending the preliminary injunction entered by the district court . . . which we
have already held rests on an erroneous legal premise.”); New Motor Vehicle Bd., 434 U.S. at
1347 (“I am also of the opinion that a majority of the Court will likely reverse the judgment of
the District court. . . . [T]he respondents for whom judgment is stayed are free to move the full
Court to vacate a stay if they feel the Circuit Justice has miscalculated on [this] point.”). The
court agrees with the Plaintiffs that these cases are distinguishable from the facts presented here.
If the court were to follow the State’s argument, it should automatically grant a stay of its
judgment whenever it invalidates a State law. The court is unaware of any such practice within
the Tenth Circuit.
Finally, the State argues that same-sex couples who marry pending an appeal to the Tenth
Circuit face a cloud of uncertainty. It is the State’s position that it will seek to invalidate any
same-sex marriages lawfully entered into during this time if the Tenth Circuit or Supreme Court
later upholds Amendment 3. But under this prong of the court’s analysis, the court only
considers the harm done to the State and not to the same-sex couples whose marriage
arrangements may be subject to legal challenge. For the reasons stated in the court’s previous
Order, the court finds that there is no harm to the State in allowing same-sex couples to marry.
Granting a Stay Will Irreparably Harm the Plaintiffs and Other Same-Sex Couples
In contrast to the speculative harm faced by the State, there is no dispute that same-sex
couples face harm by not being allowed to marry. In its Order, the court has already discussed
these harms, which include harms to the partners in a same-sex couple and to members of their
family. The State argues that the only harm caused by a stay would be a delay in the time that a
same-sex couple would have to wait to marry in Utah or have their out-of-state marriage
recognized. But some couples, including Plaintiffs Karen Archer and Kate Call, may be facing
serious illness or other issues that do not allow them the luxury of waiting for such a delay.
The Public Interest Will Be Harmed by a Stay
Finally, the State contends that the public interest will be harmed if the court does not
issue a stay because the public has an interest in deciding public policy issues such as the
definition of marriage. The court agrees that the public has a strong interest in exercising its
democratic powers. But as stated in its Order, the Constitution does not permit either a state
legislature or the state’s citizens through a referendum to enact laws that violate constitutionally
protected rights. And “while the public has an interest in the will of the voters being carried out .
. . the public has a more profound and long-term interest in upholding an individual’s
constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). The court
therefore finds that the public interest factor weighs in favor of protecting the constitutional
rights of Utah’s citizens.
The State requests that, in the event the court denies its Motion to Stay, the court grant a
temporary stay to allow the Tenth Circuit an opportunity to decide whether a stay is warranted.
But the purpose of a temporary stay is to preserve the status quo. The court agrees with
Defendant Sherrie Swenson in her official capacity as the Clerk of Salt Lake County that the
status quo is currently that same-sex couples are allowed to marry in the State of Utah. As a
result, the court would no longer be issuing a stay of its judgment, but an injunction enjoining
county clerks in Utah from issuing marriage licenses to same-sex couples. Under these
circumstances, the court finds that its appropriate role is to issue a ruling on the merits of the
Defendants’ Motion to Stay as expeditiously as possible, thereby immediately allowing the Tenth
Circuit to exercise jurisdiction over the merits of the case and the question of whether a stay
should be issued pending appeal.
For the reasons stated above, the court hereby DENIES the Defendants’ Motion to Stay
SO ORDERED this 23rd day of December, 2013.
BY THE COURT:
ROBERT J. SHELBY
United States District Judge