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District court judge won’t halt Utah same-sex marriages

LGBT Legal Cases Marriage equality Marriage Equality Trials

UPDATE 4 7:21PM ET: The plaintiffs have now filed their opposition to a stay at the Tenth Circuit. The filing also has a transcript of today’s district court hearing.

UPDATE 3 6:50PM ET: Judge Shelby’s written order denying the stay has finally been handed down. It can be found here.

UPDATE 2 3:20PM ET: The 10th Circuit has set a deadline for 5 p.m. Mountain time today for the plaintiffs in the case to file their response to the state defendants request for a stay pending appeal. Plaintiffs had filed a notice of their intent to reply to the request.

UPDATE 1:47PM ET: Utah immediately filed a request to the Tenth Circuit for an emergency stay.

Judge Robert Shelby, the federal district court judge who struck down Utah’s same-sex marriage ban, has just denied the state’s request for a stay of his order. This decision means that same-sex marriages will continue in Utah, unless and until the state seeks an appeal of the stay denial in the Tenth Circuit Court of Appeals.

US District Court, District of Utah. Attribution: Wikipedia
US District Court, District of Utah. Attribution: Wikipedia
The latest action from Judge Shelby follows a hearing this morning on the state defendants’ request, filed late Friday afternoon, to halt same-sex marriages while the case is appealed. Same-sex couples began to apply for marriage licenses in the state after the district court decision came down, prompting the state defendants to ask both the district court and the appeals court to issue a stay. Over the weekend, the Tenth Circuit received briefs on a request for an emergency stay that would only remain in effect until today’s hearing, but the appeals court ultimately declined to halt same-sex marriages, pointing to the fact that there were procedural flaws with the filed request. (This morning, they again denied a request.)

The district court also received briefs on the state’s request for a stay pending appeal of the decision on the merits. The state filed a new reply brief in district court today.

Some county clerks continued to issue marriage licenses to same-sex couples this morning.

The state has already filed its appeal of the case on the merits, and it has been docketed at the Tenth Circuit as 13-4178. It’s styled Kitchen v. Herbert.

With Judge Shelby’s denial of a stay pending appeal, the state has the option to appeal the denial to the Tenth Circuit, where they could grant or deny the stay, despite their earlier denial of the temporary one. (The Tenth Circuit denied the request “without prejudice” to the state re-filing the motion and following proper procedures.) The next step after the appeals court would be a request from the losing party to the Circuit Justice for the Tenth Circuit, who takes up various applications related to cases in that appeals court. The Circuit Justice for the Tenth Circuit is Justice Sonia Sotomayor. She could decide to grant or deny a stay on her own, or ask the full Supreme Court to decide.

The state is likely to decide soon whether to appeal this denial.

Thanks to Kathleen Perrin for these filings

Please consider making a donation to EqualityOnTrial before the year ends to help us continue covering equality in the courts.

111 Comments

  • 1. davep  |  December 23, 2013 at 10:21 am

    Sweet!

  • 2. José R. Merentes  |  December 23, 2013 at 10:27 am

    I think it would be interesting having a case where religious discrimination is alleged by a church which is not permitted to perform same sex weddings. What do you think?

  • 3. peterplumber  |  December 23, 2013 at 10:27 am

    That was the right thing to do. Let's hope the 10th thinks the same.

  • 4. cr8nguy  |  December 23, 2013 at 10:29 am

    what was the reason for the denial? do we have document?

  • 5. Bruno71  |  December 23, 2013 at 10:29 am

    If the Tenth Circuit grants a stay, can that be appealed to SCOTUS? Would anyone have standing to do so if they've already been legally married in this short interim?

  • 6. Scottie Thomaston  |  December 23, 2013 at 10:31 am

    No written order yet but I'll definitely post it as soon as it's available.

  • 7. cr8nguy  |  December 23, 2013 at 10:32 am

    thanks! you rock :)

  • 8. davep  |  December 23, 2013 at 10:34 am

    I've been wondering that too – there have been several instances of religious organizations supporting our side by doing things like submitting amicus briefs to argue in favor of SSM, and these briefs have outlined how denial of SSM is infringing on their right to practice their beliefs as they wish, but so far none have actually been plaintiffs….

  • 9. sfbob  |  December 23, 2013 at 10:35 am

    If the Tenth Circuit grants a stay, I'd assume any couple wishing to marry but unable to do so could appeal. As our side is far better organized than the state seems to be, I'd be pretty certain they've got potential plaintiffs all lined up and ready to seek licenses.

  • 10. Scottie Thomaston  |  December 23, 2013 at 10:35 am

    Yes a stay can be appealed. The plaintiffs will first have to file an application with Justice Sotomayor. She can either rule or refer to the full Court.

  • 11. Zack12  |  December 23, 2013 at 10:39 am

    Gays being viewed as icky is NOT a valid reason to ask for a stay,why don't these people get that?

  • 12. Eric  |  December 23, 2013 at 10:42 am

    There is no case. Churches can marry who they like. When they serve as agents of the state, they are functioning in a secular role.

    A better suit to bring would be to challenge state agents that won't marry anyone–in violation of state anti-discrimination laws.

  • 13. ebohlman  |  December 23, 2013 at 10:42 am

    Since church weddings don't convey any legal status by themselves, I doubt there's an injury in the legal sense. It's just coincidental that marriages are often solemnized during church weddings; that's just a matter of convenience for the couple.

  • 14. Eric  |  December 23, 2013 at 10:43 am

    Superstition isn't about reason.

  • 15. ebohlman  |  December 23, 2013 at 10:45 am

    Tweets were saying that Shelby ruled that the state had merely reiterated the same arguments that he ruled against.

    BTW, Utah is supposed to be naming its new AG any time now (as in today).

  • 16. sfbob  |  December 23, 2013 at 10:50 am

    Whoever it is, I don't think I'd like to be that person.

  • 17. Dr. Z  |  December 23, 2013 at 11:08 am

    Tarbet was angling for the job but I doubt he helped his chances. The teabaggers are lobbying for Bob Smith as AG. See http://www.examiner.com/article/utah-gay-marriage

  • 18. bythesea  |  December 23, 2013 at 11:14 am

    http://www.sltrib.com/sltrib/politics/57302416-90

  • 19. grod  |  December 23, 2013 at 11:14 am

    cr8n but here is the last submission by the state as to why the Judge was in error and why a stay should be granted, http://www.scribd.com/doc/193284451/2-13-cv-00217

  • 20. bythesea  |  December 23, 2013 at 11:14 am

    Sean Reyes it seems.

  • 21. Rose  |  December 23, 2013 at 11:17 am

    And STUPIDITY should hurt…….lol!!!

  • 22. Bruno71  |  December 23, 2013 at 11:18 am

    But how could a couple who wasn't a party to the case to begin with appeal? There are only 3 plaintiff couples in this case, if I understand it correctly, and all 3 are currently married (2 were married on Friday). That might beg the question, after a (now still hypothetical) stay is granted by the 10th, is the state of Utah currently recognizing these marriages or not?

  • 23. Dr. Z  |  December 23, 2013 at 11:21 am

    Is he an Eagle Forum guy? I gather he's a convert to Mormonism?

  • 24. bythesea  |  December 23, 2013 at 11:33 am

    No idea. So far I've only found some bits of info online.

  • 25. Dr. Z  |  December 23, 2013 at 11:35 am

    So far our hunch has been correct, the 10th has been playing this cautiously and by-the-book with Sotomayor watching over their shoulders. Based on their remarks on the State's requests over the weekend I'd say they weren't going to be rushed into issuing a hasty and unwattanted stay.

  • 26. palerobber  |  December 23, 2013 at 11:42 am

    looks like both of the state's stay requests over the weekend were fielded by 10th Circuit Judges Holmes (GWB appointee) and Bacharach (Obama appointee), both in Oklahoma.

    does this mean they will also be the ones to consider the state's latest request?

  • 27. grod  |  December 23, 2013 at 11:47 am

    Plaintiffs have file notice that they will submit a Reply tomorrow on State's latest request to the 10th Circuit Appeal Court.

  • 28. Guest  |  December 23, 2013 at 11:52 am

    Either way it will be an acid spitting Mormon/Christian bigot.

  • 29. Lynn E  |  December 23, 2013 at 11:53 am

    Derek Kitchen was on the news on Friday night. They said they had chosen not to get married yet, because they were planning a larger celebration. So unless they changed their plans, at least one of the couples are still legally single.

  • 30. palerobber  |  December 23, 2013 at 11:54 am

    that's correct, and also because the state failed to show irrepairable harm if the stay was denied. the judge almost seemed to scold the state for claiming irrepairable harm *now*, when they'd failed to make a stay request in advance of the ruling as they could have done (and as was done in the Walker case) or even in the hours immediately after the ruling Friday. the judge also pointed out that the "status quo" has changed, so the state's argument that a stay would preserve the status quo was confused.

  • 31. sfbob  |  December 23, 2013 at 12:00 pm

    My assumption (not being a lawyer I might be wrong) is that since the challenge is to the law regardless of who it applies to, one needn't be among the original plaintiffs in the case since but merely another plaintiff similarly situated in that they were denied a marriage license. If a stay is granted then any couple can show up, apply for a marriage license, be turned down, and join the appeal.

    I don't know how the state of Utah is going to treat the marriages that have already taken place. It's an interesting question. I don't know whether Utah has an income tax. Oh wait, yes it does, I just checked. So any married couples would need to file their state income taxes. Until the case is resolved, those couples will presumably be married under the law and therefore should be able to file both federal and state income taxes as married. In addition if anything happens were a court ruling or other procedure turning on marital status takes place, the state courts should, presumably, have to treat them as marriage unless and until it is determined that the aren't and never were (an increasingly unlikely prospect I would say). In short I don't think the state has any choice but to treat them as married unless the state wants to face additional litigation.

  • 32. sfbob  |  December 23, 2013 at 12:05 pm

    It's very whiny.

  • 33. SoCal_Dave  |  December 23, 2013 at 12:15 pm

    What does all this mean for Utah couples who were legally married elsewhere?
    I'm assuming that if it's unconstitutional to deny marriage licenses, it would be equally unconstitutional to not recognize an existing marriage (?)

  • 34. Bruno71  |  December 23, 2013 at 12:19 pm

    I thought I read somewhere that they applied for and got a license, but maybe that's as far as they went. I guess then if the appeals court puts in a stay, they can have standing based on the state not allowing the actual marriage to be certified.

  • 35. Bruno71  |  December 23, 2013 at 12:21 pm

    Thanks for the input. It'll definitely be a "messier" situation if the 10th Circuit grants a stay.

  • 36. Gregory in SLC  |  December 23, 2013 at 12:24 pm

    Hi PP! Good day in Utah :D!

  • 37. Bruno71  |  December 23, 2013 at 12:27 pm

    Probably just some bad reporting…I don't even think they applied for a license. We have to hand it to those who've fought in court for equality, they know what they're doing.

  • 38. Jon  |  December 23, 2013 at 12:30 pm

    They seem to have forgetten to include a section on what immediate harm they're going to suffer. If I read the 10th circuit replies to the state earlier, perhaps they have still failed to submit a filing meeting the standard requirements of a stay request?

  • 39. Rev. Will Fisher  |  December 23, 2013 at 12:33 pm

    Eric & ebohlman are both correct. Religious orgs (churches, synagogues, etc) are free to choose which marriage ceremonies they will conduct and which ones they won't. Just wanted to point out that most denominations will not do a wedding unless the couple has a legally valid license (usually there are other internal requirements like premarital counseling, etc). Some states prohibit conducting a ceremony unless there is a valid license. However, if a ceremony is called a commitment ceremony, then no penalty applies. My denomination (The Episcopal Church welcomes you!) has been doing that for years in jurisdictions where SSM was illegal.

  • 40. Scottie Thomaston  |  December 23, 2013 at 12:35 pm

    The initial opinion struck down the laws pertaining to non-recognition of outside marriages so presumably they're now legal.

  • 41. palerobber  |  December 23, 2013 at 12:38 pm

    yes, Judge Shelby addressed that in his opinion (i believe one of the plaintiffs is in this situation).

  • 42. SoCal_Dave  |  December 23, 2013 at 12:59 pm

    Thanks, Scottie and Palerobber. So the population of married same-sex couples in Utah could potentially be much bigger than those who've gotten married since Friday.

  • 43. grod  |  December 23, 2013 at 12:59 pm

    ISSUING same-sex licenses in at least Rich, Weber, Tooele, Davis, Summit, Salt Lake, Duchesne, Uintah, Millard, Grand, Iron, Washington, Wayne, and Daggett . Sanpete may possibly be next.

  • 44. Karl Schneider  |  December 23, 2013 at 1:08 pm

    Unless there is a public law restricting their legal right to perform such marriages, there's no legal remedy available (or appropriate). Marriages can take place in a church or anywhere else, the religious part is simply an option. You can get married without a church but you can't without a state license…anywhere in the U.S. as far as I know.

  • 45. davep  |  December 23, 2013 at 1:19 pm

    Can you expand on the part of your comment where you say that "some states prohibit conducting a ceremony unless there is a valid license"? Because if that's true, and the state denies that license to a same sex couple that belongs to a church that wants to perform that ceremony for them, the restriction is directly preventing that religious group from being involved in a marriage ceremony for that couple, isn't it?

  • 46. Paul S  |  December 23, 2013 at 1:35 pm

    It would surprise me to learn that any of the plaintiffs got married. The lawyers should know enough to advise them not to marry as it could potentially disrupt the lawsuit and make everything moot.

  • 47. palerobber  |  December 23, 2013 at 1:37 pm

    yes, and that's a great point.

  • 48. Bruno71  |  December 23, 2013 at 1:37 pm

    One couple already was married in Iowa before the case was brought. I think the lesbian couple from Utah got married Friday.

  • 49. grod  |  December 23, 2013 at 2:16 pm

    Sanpete apparently tomorrow am.

  • 50. Zack12  |  December 23, 2013 at 2:50 pm

    On a different note,while it a crap shoot,one judge we definately don't want anywhere near this is Timothy Tymkovich.
    You might not know who he is but you will know the case he argued in favor for the state.
    A little case called Romer V Evans.
    He's a bigot through and through in the Scalia mode.

  • 51. Dr. Z  |  December 23, 2013 at 2:56 pm

    Not just that, they also neglected to discuss the harm the plaintiffs would suffer. I think they screwed up again.

  • 52. Dr. Z  |  December 23, 2013 at 3:07 pm

    Update – it looks like the Eagle Forum was strongly backing Bob Smith, so this guy Reyes wasn't the choice of at least some in the religious right/tea party. Interesting. Reyes has asked Tarbet to hang around during the transition.

    This disorganization/distraction in the Utah AG's office is a windfall for our side.

  • 53. Straight Ally #3008  |  December 23, 2013 at 3:15 pm

    It really was a perfect storm, no? Reminds me of the late Jerry Falwell's warning about the "literal" gay steamroller.

  • 54. Valquiria  |  December 23, 2013 at 3:30 pm

    Reyes seems like a Chamber of Commerce type, but as a Utah Republican he'll certainly tow the bigot line.

  • 55. davep  |  December 23, 2013 at 4:05 pm

    Oh my goodness! How vivid!

  • 56. gtrod  |  December 23, 2013 at 4:12 pm

    Plaintiff's 69 pg response to state's last emergency request for stay: http://www.scribd.com/doc/193374907/13-4178-11

  • 57. Rev. Will Fisher  |  December 23, 2013 at 4:17 pm

    Uh, I dunno. I have an M. Div. not a J.D.;)

  • 58. Scottie Thomaston  |  December 23, 2013 at 4:25 pm

    Everyone: apologies for the erroneous draft that got published this afternoon while we were away. We are looking into how/why that happened.

  • 59. draNgNon  |  December 23, 2013 at 4:31 pm

    hi Scottie, I just looked at Digg Reader and it still shows the erroneous draft, you might want to check your feeds. I was so confused!

  • 60. Carol  |  December 23, 2013 at 4:33 pm

    I see the same issue. If a church considers marriage a sacrament that it wishes to offer to all committed couples, it seems to me that a state that forbids the celebration of such sacraments for same sex couples only is abridging the free exercise of religion in that respect.

  • 61. Scottie Thomaston  |  December 23, 2013 at 4:49 pm

    Thanks! I'm getting the tech team on this to see what is going on and get rid of the other post.

    But just to be 100% clear to everyone: Judge Shelby DENIED the stay. There is no stay on marriages right now. The Tenth Circuit just received a brief opposing a stay from the plaintiffs. That is the most recent development. But the Tenth Circuit has yet to rule on the new request. But there is NO STAY right now.

  • 62. Chad  |  December 23, 2013 at 4:55 pm

    sorry, that's wrong. only the original plaintiffs could appeal a 10th circuit ruling in this case to the Supreme Court. someone cannot join the lawsuit now after a ruling has been issued.

  • 63. Izzoiz.com | Utah: Judge &hellip  |  December 23, 2013 at 4:56 pm

    […] via Equality On TrialDistrict court judge won’t halt Utah same-sex marriages ยป Equality On Trial. […]

  • 64. sfbob  |  December 23, 2013 at 5:10 pm

    I stand corrected then. Thanks for the information. No, not sarcasm; I do appreciate it.

  • 65. sfbob  |  December 23, 2013 at 5:17 pm

    I don't have time to read it but at first blush it seems to be a thorough rebuttal of the state's arguments.

  • 66. draNgNon  |  December 23, 2013 at 5:20 pm

    thanks for being so on top of this stuff Scottie. Utah is having a most exciting Christmas!

    something that has been making the rounds is this case, which I haven't seen here: http://www.edgeboston.com/index.php?ch=news&s

    in which a couple in Oklahoma filed suit years ago and have yet to have a hearing. Oklahoma is in the Tenth Circuit, so, wow.

  • 67. grod  |  December 23, 2013 at 5:57 pm

    In reading Judge Shelby's reasoning for denying a stay [appendixed above], two telling pieces of information stood out: prior to the Friday afternoon post-decision phone conference, the Stated had not requested a stay; and upon asking for a stay, and being told it would need to do so in writing, the State was uncertain about its plans to file a motion requesting a stay. This questionable preparedness was also evident to those who considered the State's first request to the 10th circuit Appeals Court. The cler,k in denying the stay, reminded the State of protocol. All this bungling in the face of the State’s effort to perceive was an 'eroding status quo'. In Shelby’s written decision denying the request for a stay, he referenced an observation of a county clerk [during the stay hearing this am]. The status quo had changed. Indeed so, apparently between Friday and Monday, in SL County alone there were 477, mostly same sex marriages.

  • 68. grod  |  December 23, 2013 at 6:21 pm

    Gregory – others and I have been on the look out for you and your insightful comments. Hurrah! 21 County Clerk offices were prepared to offer licenses by the end of today. Over 700 marriage licenses issued since Friday. http://www.deseretnews.com/article/865592961/Abou… Awaiting to hear from you. Graeme

  • 69. marvelmvs  |  December 23, 2013 at 6:39 pm

    Yeah, I would be VERY surprised if the 10th Circuit actually granted a stay. The exact deficiencies that existed the last time they filed exist here. It doesn't take an experienced attorney to recognize the difference between saying the decision was improperly decided and that there is a good reason to grant a stay.

  • 70. Gregory in SLC  |  December 23, 2013 at 6:39 pm

    Thank you for friendly Greetings ! And thank you for info. ..I mostly avoid Deseret News, but glad to see the numbers. The city\County building is 4 blocks from our home, we can feel the excitement and energy even passing by. I'm in the middle of a very bad cold and swamped at work so have been unable to be in the thick of things….I was itching to be at the Courthouse this morning. Continued…

  • 71. Gregory in SLC  |  December 23, 2013 at 6:44 pm

    What I have done is watched the local news, spoken to local political persons, church acquaintances, xo workers,allies, and family. I have detected almost no pushback or disapproval from my circles. Most have attitude of live and let live. I notice attitude of everyone deserves to be happy. The same cannot be said of Govenor and attorney for state Lott….

  • 72. Gregory in SLC  |  December 23, 2013 at 6:50 pm

    In every interview and message they seem so defeated and loss for words. Lott, who we meet in the hearing a few weeks ago is not making any attempt to be cordial, refusing to answer reporter questions. I am most eager to see what happens in Utah County, BYU territory, population 500, 000 and had not issued a single license. I have the hope many will get to marry there tomorrow, …I think their clerk, Lott and gov hoping for a stay from 10th circuit tomorrow. …

  • 73. Gregory in SLC  |  December 23, 2013 at 6:56 pm

    The state felt so invincible they are still in shock/denial. The PFLAG moms/parents have been glorious and inspiring, keeping people who want to marry informed and encouraged. So much good and happiness. .. baffling how the Govenor is trying to play grinch on the important local holiday eve. Love and light and good wishes to all! Thank you for all the love and support from p8tt family. Xoxoxo, Gregory

  • 74. Gregory in SLC  |  December 23, 2013 at 7:11 pm

    P.s it had been wonderful and interesting to see many people we know, even co-workers get married that I was not aware were non-straight. We were spotted on the news at the hearings and had many people mention it, providing an opportunity to Converse about marriage equality and how it affects or family. It feels a lot less lonely living in Utah, more hopeful as we come out of the shadows en mass. Energized and determined to bring equitable to all states. On a personal level, typing this from my hubby's hospital room, had abdominal surgery today. We have been treated as a married couple during the whole process, legally married in Utah…mind blowing, awesome :D!

  • 75. Chuck in PA  |  December 23, 2013 at 7:34 pm

    Congratulations to you and my wishes for your husband's speedy recovery.

  • 76. grod  |  December 23, 2013 at 7:46 pm

    As of late Monday, Beaver, Carbon, Weber, Davis, Daggett, Emery, Salt Lake, Summit, Tooele, Duchesne, Uintah, Morgan, Millard, Grand, Iron, Kane, Rich, Sanpete, Sevier, Wayne, Washington and Wasatch counties were issuing same-sex marriage licenses. Will Garfield County be 23rd of 29. .

  • 77. Gregory in SLC  |  December 23, 2013 at 8:00 pm

    The status quo has indeed changed :D! The main talking point that seems emphasized on local news is that the state did not make any provision or request for a stay. Judge Shelby held a conference call with attorneys Friday prior to announcement and asked how state was going to proceed… they indicated not sure, again no indication of requesting a stay. Their excuse was "because Friday before Christmas"….

  • 78. Dr. Z  |  December 23, 2013 at 8:56 pm

    It's masterfully written. We've plainly got a top-notch councillor on our team!

  • 79. David UT  |  December 23, 2013 at 9:53 pm

    Utahns celebrate: http://www.sltrib.com/sltrib/news/57303881-78/gay

  • 80. David UT  |  December 23, 2013 at 9:57 pm

    Three! top-notch representatives and a lot of other good people working to make change happen.

  • 81. David UT  |  December 23, 2013 at 9:59 pm

    Yes. Utah no longer can refuse to recognize marriages performed elsewhere based on sex chromosomes of the couple.

  • 82. David UT  |  December 23, 2013 at 10:00 pm

    One of the three couples (six individuals) were married in Iowa.

  • 83. David UT  |  December 23, 2013 at 10:06 pm

    The County Clerk in Utah County, e.g., Provo, home of Bring'em Young University, decided to issue his own stay. I believe a law suit has been filed or may be filed shortly naming the clerk personally as a party.

  • 84. David UT  |  December 23, 2013 at 10:18 pm

    Derek and Moudi have said that they are not going to get married until the case has been resolved. They did participate in tonight's celebration http://www.sltrib.com/sltrib/news/57303881-78/gay

  • 85. David UT  |  December 23, 2013 at 10:41 pm

    Greetings, Fellow Californians,*

    Karma Bites!

    Utah is having an exceptionally interesting December.

    First, the Locally Dominant Sect acknowledged that their second Prophet, Seer, and Revelator (Bring'em Young) was a bigot but explained that many individuals during that period of time were also. (Oddly, none of those other individuals were the so-called Living Prophet and President of the One and Only True, Restored Church.)

    Next, criminal penalties for polygamous co-habitation (no actual bigamous marriages involved) were struck down. (The locals can't seem to understand that there is a difference between sexual predation involving, for example, 14-year-olds and made-for-TV we-are-all-adults-here polygamy.)

    And now Judge Shelby's ruling, complicated by the fact that the State's lawyers ___ed the pooch on the whole "Stay" process.

    If this goes all the way to SCOTUS (and eventually it will), and if a SCOTUS ruling wipes away all other marriage discrimination statutes, the fickle finger of fate will point directly at Utah.
    __________
    * I was born in Balboa Park (San Diego), but not at the zoo.

  • 86. sfbob  |  December 23, 2013 at 11:33 pm

    Having now had a chance to read the entire brief I have to concur. It is succinct and lucid. Four tests to be taken into account when the courts consider issuing a stay; the State cannot meet any one of them. The plaintiffs and others similarly situated face irreparable harm if their rights are not vindicated; the state can demonstrate no harm to itself. And so on. The brief even manages to cite today's decision in Ohio. News travels fast these days and that all turns out to favor the outcome we want and deserve.

  • 87. SeattleRobin  |  December 23, 2013 at 11:53 pm

    I thought it was interesting (and infuriating) that in the latest request for a stay to the 10th by the State that they repeatedly stated that Judge Shelby's order said that the traditional definition of marriage is irrational. I don't know if they're just stupid (possible) or think that the judges in the 10th are stupid and/or gullible (more likely) but the order never made that statement anywhere. What was termed irrational were the states reasons given for why marriage should only be between a man and a woman. Two completely different things and I'd think anyone with two brain cells to rub together would see that. Which makes me wonder why the State not only stated that in their motion, but repeated it continuously throughout. I guess they're going with the "if you say it enough times it makes it true" idea?

  • 88. Dr. Z  |  December 24, 2013 at 3:23 am

    Another detail that impressed me was their treatment of the 1979 Baker decision. The brief pointed out that in a 1979 SCOTUS decision ruled that the one-line dismissals "for want of a federal question" were dispositive only in those particular circumstances. In other words, Baker was never binding precedent. For sure, times have changed and Baker is stale and blah blah blah, but it was nice to see a (to me) new and salient argument that finally put Baker to rest.

  • 89. Dr. Z  |  December 24, 2013 at 3:24 am

    Oops 1972 Baker decision. I wish I could edit these posts.

  • 90. Lymis  |  December 24, 2013 at 4:46 am

    I used to think that as well. But the best explanation of it that I've ever seen was in the ruling by the Canadian Supreme Court (I know that's not the actual name of the court), back when the question of civil marriage came up in Canada.

    They pointed out that a church or congregation to perform purely religious ceremonies and to attach whatever religious significance they choose to for the purposes of doctrinal or religious purposes is distinct from the government's authority to conduct and recognize legally binding contractual procedures.

    Without the underlying civil component, a religious marriage is essentially the equivalent of a bar mitzvah, baptism, or confirmation – religiously significant to those involved, but carrying no governmental obligations. So religious groups are perfectly free to conduct weddings without interference, and to religiously hold them to be as binding or not on the participants as they choose. The government has no say in it.

    So no church is being barred from its purely religious freedom to conduct sacraments, and no citizen is being prevented from holding those sacraments as being personally significant.

    That being true, the legal issues become the same for all citizens – non-religious people and those who wish to marry without religious blessing are being no more and no less deprived of their rights than those who wish to have religious blessings.

    Nobody is being prevented from holding sacramental ceremonies of matrimony. They cannot declare that those ceremonies hold civil weight – but they can't declare that a bar mitzvah makes a 12 year old a legal adult, either.

    Recognizing this as an infringement of religious liberty would be claiming rights for churches to uniquely govern civil law that they simply don't have.

    If someone criminalize performing the ceremonies, that would be a different matter. This law doesn't do that.

  • 91. Lymis  |  December 24, 2013 at 5:00 am

    I'd have to reread it, but as I recall, it didn't even say that – it said that there is no rational connection between the state's legitimate interests and the reasons they were giving for denying same-sex couples the right to marry.

    "2+2=4" is a rational statement. But if you said, "2+2=4, so therefore you cannot order pizza" there is no rational connection between the reason given and the restriction being applied.

    There is no rational connection between keeping gay couples from marrying and encouraging straight couples to have and raise children. And so on. It's not that the reasons are irrational (though in some cases, they are, like the idea that infertile straight couples without kids benefit children, while same-sex couple with children don't).

  • 92. rhondafrazierevans  |  December 24, 2013 at 6:06 am

    I think that these "defenders of traditional marriage" are so stuck on their script (that the gays think 'traditional marriage' is irrational) that they don't see anything but that.

  • 93. grod  |  December 24, 2013 at 6:31 am

    Box, Cache, San Jan, Utah counties apparently are not yet on board.
    Juab and Piute Counties have not been requested to issue any licenses at all. http://www.kutv.com/news/features/local/stories/v… . Which of the 4 contrarians will be on board this am?

  • 94. palerobber  |  December 24, 2013 at 7:37 am

    good morning, nothing yet from Oklahoma?

    what happens if Holmes and Bacharach are split on whether to grant stay? (assuming they are again the ones to response)

  • 95. Dr. Z  |  December 24, 2013 at 7:52 am

    I would guess they're treading carefully.

  • 96. sfbob  |  December 24, 2013 at 8:11 am

    When you know your side is losing you do what you can to make the opposition's statements seem like personal insults when all they are is statements of fact. That sort of tactic was used in the oppositions briefs during the DOMA trial. Where we observed that the statements made by members of Congress in the runup to the law's passage manifested animus, the opposition's attorneys accused our side of saying (more or less) that we were accusing certain members of Congress of being bigots. Now that was most certainly true, but that isn't what our argument was about.

  • 97. grod  |  December 24, 2013 at 9:24 am

    Cache begins issuing licenses. Which of the 3 contrarians will be next? http://www.kutv.com/news/features/local/stories/v

  • 98. JayJonson  |  December 24, 2013 at 9:29 am

    sfbob above pointed out that the plaintiff's rebuttal brief to the state's request for a stay "even manages to cite today's decision in Ohio." What is interesting also is that Judge Black's decision in the Ohio case has a footnote citing Judge Shelby's ruling in the Utah case. I love how these case are reinforcing each other. These judges are adding last minute notes to their rulings!

  • 99. Bruno71  |  December 24, 2013 at 9:50 am

    I'm actually surprised at how many of the counties are complying.

  • 100. Bruno71  |  December 24, 2013 at 9:54 am

    That "excuse" absolutely blows my mind. And the fact that they admitted it too.

  • 101. StraightDave  |  December 24, 2013 at 9:54 am

    That's partly because they keep conflating traditional marriage with SSM prohibition. Those are not the same thing at all. That causes them to confuse (either deliberately or ignorantly) "SSM upsetting the traditional M+F exclusivity club" with "SSM harming actual M+F marriages".

  • 102. José R. Merentes  |  December 24, 2013 at 10:06 am

    Thank you so much for clarification. I am not that familiar with marriage law in the States and I understand that it s not that different from ours (Venezuela). The complexity here in public debate on marriage is perhaps due to evangelicals conservatives who do not perform church marriages but commend civil marriage.

  • 103. palerobber  |  December 24, 2013 at 10:14 am

    btw, this article calls Judge Holmes "extremely conservative" and "the next Clarence Thomas".
    (http://abovethelaw.com/jerome-holmes/),and Judge Bacharach's nomination was filibustered by Senate Republicans.

  • 104. Dr. Z  |  December 24, 2013 at 1:38 pm

    "Sorry, your Honor, but I wasn't paying attention. What's the legal term for a Mulligan? 'Without prejudice' – is that it?"

  • 105. Eric  |  December 24, 2013 at 4:16 pm

    10th Circuit denies the stay. http://www.buzzfeed.com/chrisgeidner/appeals-cour

  • 106. Eric  |  December 24, 2013 at 4:21 pm

    Full order: http://libertasutah.org/drop/staydenial.pdf

  • 107. Allan  |  December 24, 2013 at 4:22 pm

    Now, that's a great stocking stuffer!

  • 108. James UK  |  December 24, 2013 at 4:25 pm

    Marvelous news! And reading the order, which is up on Buzzfeed, its clear that these 2 judges doubt that there is any realistic prospect of success or any irreparable harm to the state of Utah in not granting a stay, We have to hope that Sotomayor refuses any application to SCOTUS.

  • 109. ebohlman  |  December 24, 2013 at 4:41 pm

    We'll never know, since they just denied the stay.

  • 110. Equality On TrialSupreme &hellip  |  January 6, 2014 at 7:50 am

    […] deciding to wait on the district court to issue a ruling on the stay request. The district court declined to halt same-sex marriages pending the appeal of the case on the merits, and that was followed up by a […]

  • 111. Gregory in SLC  |  January 15, 2014 at 5:26 pm

    Fast forward three weeks :D!
    http://www.advocate.com/politics/marriage-equalit

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