By Patty Henetz
SALT LAKE CITY (Reuters) - Utah's attorney general instructed county clerks on Tuesday to issue marriage licenses to gay and lesbian couples requesting them, as ordered by the federal judge who overturned a state ban on same-sex weddings, or risk being held in contempt of court.
The admonishment from Attorney General Sean Reyes' office came shortly before the 10th U.S. Circuit Court of Appeals denied for a third time a state request to put the judge's ruling on hold while the case remained under court review.
Ryan Bruckner, a spokesman for the attorney general, said the instruction was not intended as an official dictate but to advise county clerks "if they continue to deny (applicants), they could have problems with being in contempt of court."
"I would not expect to see much of a problem past Thursday," said Bruckner, adding that he expected all 29 of Utah's counties to comply with the court order. State and county government offices are closed on Wednesday in observance of the Christmas holiday.
Utah became the 18th state to extend marriage rights to gays and lesbians when U.S. District Judge Robert Shelby on Friday sided with three same-sex couples in their lawsuit challenging a voter-passed amendment to the Utah Constitution that defined marriage as exclusively between a man and a woman.
Shelby's finding that the exclusion violated gay couples' rights to due process and equal protection marked a major victory for gay rights activists in a conservative state, and it appears to have taken some people by surprise in Utah.
At least four counties were still refusing to issue marriage licenses as of Monday, according the Salt Lake City-based gay rights group Utah Pride.
It was unclear how many counties were continuing to do so on Tuesday, or if any had changed course due to the message from the attorney general's office.
Salt Lake County, the state's most populous county, began issuing marriage licenses to same-sex applicants within hours of Shelby's ruling on Friday.
Utah County, the second most populous county in the state, was among the jurisdictions that did not immediately follow the federal court's order. On Monday, Salt Lake City television station KUTV followed a lesbian couple into the Utah County clerk's office, where they were denied, according to the station.
Officials in rural Cache County issued a statement on Monday saying they had closed the clerk's office there "until further notice" so that they could "sort out the legal issues and confusion created in the wake of Judge Shelby's opinion." The office remained closed on Tuesday.
San Juan County Commission Chairman Bruce Adams said before the advisement from the attorney general that his office was waiting for legal direction from the state. "There's no effort to deny anybody, we're just waiting," he said.
Utah Governor Gary Herbert has already filed a formal notice of his intention to appeal Shelby's ruling on its merits.
On Monday, Shelby denied a request from the state to put his own ruling on hold pending appeal. The 10th U.S. Circuit Court of Appeals, based in Denver, has likewise declined to issue an emergency stay of the ruling, as requested by the state.
"Having considered the district court's decision and the parties' arguments concerning the stay factors, we conclude that a stay is not warranted," Circuit Judges Jerome Holmes and Robert Bacharach wrote on Tuesday in the court's third denial.
President Barack Obama in 2011 nominated Shelby to be a federal judge in Utah, and he won confirmation from the U.S. Senate in 2012 with Utah's two Republican senators, Orrin Hatch and Mike Lee, lending their support.
(This story was refiled to remove extraneous letters from headline)
(Additional reporting by Robert Boczkiewicz in Denver; Writing by Alex Dobuzinskis and Steve Gorman; Editing by Edith Honan, Steve Orlofsky and Bill Trott)