The dust has settled a week after Judge Shelby struck down Utah's Amendment 3. During that time, the UT Attorney General's office failed to secure a stay on the ruling four times - three of them at the US Court of Appeals for the 10th Circuit. Now the newly minted AG Sean Reyes is seeking private counsel for the state, which in his estimation will cost Utah's coffers a cool $2 million, and he is likely to get it according to state Republican leaders in the legislature.
Utah will likely pay millions to fight against gay marriage
Anyone have BLAG deja vu?
The state's representation has been in turmoil for separate reasons, so that may explain why its bungled response to Judge Shelby has been so ... well, bungled. It appears that Reyes wants to take no chances because he only has ONE more shot at getting a stay. His next step is to ask the US Supreme Court.
Fortunately for marriage advocates, Justice Sotomayor is the go to justice for the 10th Circuit. While it is likely that she will refer the stay to the entire court, it is doubtful it will grant a stay. For starters, the state just does not have convincing arguments. In order to get a stay, the state has to show some reason why it is likely to prevail. It is evidence enough that the 10th Circuit, which has a reputation for conservatism, did not put a stop to Shelby's ruling. Second, the Supreme Court is pro-gay, narrowly, but nevertheless likely to favor the respondents. Finally, over 1000 couples have wed by now, and who knows how many more will before the state submits its motion to Sotomayor?
In any case, Kitchen v. Herbert has now been bumped to the front of the line of all ongoing marriage lawsuits. Only the Nevada case at the 9th Circuit is a little bit further ahead, but for complicated reasons it has not proceeded as quickly as we would like. A few months from now the two cases will probably be neck and neck.
Because the 10th Circuit has ordered "expedited consideration" of this appeal, it's possible that this case will be THE ONE that goes to the US Supreme Court as early as October next year.
More on this to come. So stay tuned...