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Federal judge to hold hearing on Monday on whether to stay decision requiring marriage equality in Utah

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Judge Robert Shelby. Attribution: Edge Boston
Judge Robert Shelby. Attribution: Edge Boston
Here’s a quick update on where things stand in Utah this weekend:

On Monday morning at 9AM, Judge Shelby, who authored Friday’s district court decision striking down Utah’s same-sex marriage ban, will hold a hearing in his courtroom to determine whether to grant a stay. The stay request came from state defendants late Friday. The hearing notice also says that if the plaintiffs are filing a response to the request for a stay, it’s due by 5PM on Sunday, December 22. The defendants can also file a reply, but it’s due before Monday’s hearing.

A separate request to the Tenth Circuit Court of Appeals for an emergency stay has been filed by state defendants. This stay request is only temporary: it asks the Tenth Circuit to halt same-sex marriages only until the district court decides on a more permanent stay. The plaintiffs have filed their opposition to an emergency stay at the Tenth Circuit. Their main argument is that the state failed to address the criteria for granting a stay, and since a district court hearing is scheduled for early Monday morning, there is no reason for the Tenth Circuit to involve itself in the process. The key take-away:

There is no need for this Court to step in given that the District Court is expeditiously moving forward to give Appellants a hearing on their request for a stay of the District Court’s summary judgment order this coming Monday morning.

Since both parties have filed briefs in the Tenth Circuit request, the appeals court could rule at any time. They could also choose to simply wait for the district court’s hearing on Monday. If the emergency stay is granted, it would presumably expire after the district court issues its order. The district court’s decision on whether to grant a stay can also be appealed to the Tenth Circuit, and ultimately to the Supreme Court, if the losing party chooses to do so. Justice Sotomayor is the circuit Justice for the Tenth Circuit, meaning that an application from an appeal to the Tenth Circuit would reach her chambers before it got to the full Supreme Court. She could either grant or deny the stay, or ask the full Court to decide – if the stay request goes that far.

Meanwhile, an appeal of the decision on the merits has been filed and docketed at the Tenth Circuit.

The next steps in the case are the filing of the plaintiffs’ brief in the district court on whether they should issue a stay, and then Monday’s hearing. EqualityOnTrial will continue to monitor the situation and provide updates.

Thanks to Kathleen Perrin for these filings


  • 1. SFBay  |  December 21, 2013 at 7:44 pm

    I can't see why Judge Shelby would stay his decision on Monday as he didn't stay it on Friday. This is a waste of everyone's time. But it is an opportunity for the state to further embarrass itself. This isn't televised by any change is it?

  • 2. Scottie Thomaston  |  December 21, 2013 at 7:54 pm

    Won't be televised, no. But I can't imagine it would be a particularly long hearing or anything.

  • 3. grod  |  December 22, 2013 at 7:35 am

    SFBay: Not a waste of everyone's time. At 8:00 am in all the counties of Utah, clerks’ offices open with a readiness to accept applications for marriage. A license will be issued to those wishing to be married. And all those who have been married can submit to a clerk's office evidence that they have been married. [Doing so apparently is a requirement to make their marriage 'legal'. ]. If you have read the record of the September and December hearings you would come to realize that Judge Shelby is a very thorough, possibly learned individual. He will need time to write his decision. Here is NJ Judge Mary Jacobson's 17 page reasoning for denying a stay last October to illustrate the complexity and balancing:…. Just as Jacobson's reasoning needed to withstand the review of the NJ Supreme Court,[ and it did], Judge Shelby's reasoning needs to stand the test of review by a judge of the 10 Circuit Appeals court – and potentially the Supreme Court judge assigned the circuit – Sonia Sotomayor. Because the State as appealed Judge Shelby's ruling – whether a stay remains in effect or not is very significant. Recall that August 2010, Judge V. Walker in the Prop 8 case said that all the requirements to denying a stay were in place but he deferred to the 9th Circuit Appeals Court, who subsequently continued the stay. Almost three years later – June 28 2013, the stay was lifted. In contrast, in NM, there was no stay while their Supreme Court deliberated. And 1500 marriages later, they issued their opinion. Recall Strauss vs Horton (May 2009), the California Supreme Court did not invalidate the 18,000 marriages. In short would you have preferred to have Shelby draft the reasoning, or leave it to a randomly selected Justice of the Appeal Court? I believe the hearing tomorrow matters greatly to how soon equality in achieved thoughout the USA.

  • 4. Dr. Z  |  December 22, 2013 at 9:08 am

    Have you heard whether Utah County and the other three counties who weren't issuing licenses Friday will be issuing them tomorrow? Or do those clerks need to be threatened with contempt of court before they finally comply?

  • 5. grod  |  December 22, 2013 at 9:22 am

    9. The Salt Lake County Clerk’s Office, Marriage License Division, which issues marriage licenses for Salt Lake County, Utah, will open for regular business on Monday, December 23, 2013, at 8:00 a.m. See Addendum E. The State of Utah’s 28 other counties will also be open for business on Monday, December 23, 2013, at 8:00 a.m.
    Abstracted from the AG emergency request for a stay to the 10 Circuit Appeal Court.

  • 6. grod  |  December 22, 2013 at 9:40 am

    Dr. Z or in summary the apprehensive AG says: Given the district court’s statement and the other facts, it is impossible to obtain a stay in the district court prior to commencement of the next legal business day, Monday, December 23, 2013, at which time the Salt Lake County Clerk’s and 28 other County Clerk’s offices in Utah will open under their normal operating hours. In Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001), this court determined that the immediacy of the problem warranted quick intervention by this court. …….. During the pendency of the district court motion, a considerable number of same-sex marriages could take place. " pg 4
    Why the emergency application? 'to preserve [restore] the [former] status quo' pg 5.

  • 7. palerobber  |  December 22, 2013 at 9:52 am

    the state's emergency stay request to 10th circuit specifically cited the fact that all of Utah's county clerks would be giving same-sex licenses Monday as a reason that they needed the stay.
    all the same, i hope someone from ACLU or EqualityUtah etc. is ready to apply pressure if needed. i also wonder if the couples in Utah Co. that were denied Friday have grounds for a civil rights suit.

  • 8. Dr. Z  |  December 22, 2013 at 10:06 am

    I think they'd have to show that the harm was ongoing and that there wasn't a remedy available. If these counties start issuing licenses Monday, the issue will be moot.

  • 9. palerobber  |  December 22, 2013 at 3:52 pm

    sure, and i'm hoping they do get licenses Monday. but if they can't and then this decision gets overturned…

  • 10. Lynn E  |  December 23, 2013 at 12:05 pm

    There are still counties refusing to issue to same-sex couples. Utah and Millard counties have refused. I am sure other counties will cling to their sad tradition in violation of the Court, but haven't heard any other reports. The recommendation if you are denied is to have the denial time stamped for verification.

  • 11. MichaelinFlorida  |  December 22, 2013 at 2:09 pm

    This will be quite a stretch for the Republicans. Oran Hatch recommended Judge Shelby.

    What is most amusing is it that in both the motion to stay and the emergency motion to stay the state of Utah has admitted the "harm to same-sex couples."

  • 12. Dann  |  December 21, 2013 at 8:51 pm

    IMO he won't stay his decision. He's made his decision on Friday and he's simply going through the motions. I hope he takes his sweet little time.

  • 13. Dr. Z  |  December 21, 2013 at 9:43 pm

    Now that Amendment 3 has been declared unconstitutional, the State of Utah must supply some other evidence of harm to the public interest than simply preserving the status quo. The State is not harmed by the bare inability to enforce an unconstitutional statute. Yet, in the stay request, the State does not offer convincing facts that it is harmed in any way by immediate legal SSM, apart from their touching concern for the happy married gay couples who are about to have their new unions invalidated one the State eventually prevails due to its…um…obviously brilliant legal arguments.

    In other words, the State will harm itself if the stay isn't granted. It's like when Clevon Little held himself hostage in Blazing Saddles.

  • 14. Richard Weatherwax  |  December 22, 2013 at 1:56 am

    "Federal judge to hold hearing on Monday"

    Hmm. It is unlikely that the 10th Court would impose a stay before Judge Shelby makes his decision. With Christmas eve on Tuesday, and then Christmas on Wednesday, Judge Shelby could delay his ruling until Thursday or later. A lot of marriages can be performed in that time.

  • 15. JustMe  |  December 22, 2013 at 1:47 am

    "Yet, in the stay request, the State does not offer convincing facts that it is harmed in any way by immediate legal SSM"

    You're joking, right?

    A single judge declares an enactment of the people of a state (who by the way, under the federal constitution hold the power to decide what marriage is, not a federal judge!) as null and void and you don't think that is irreperable harm?

  • 16. Ned_Flaherty  |  December 22, 2013 at 2:23 am

    To the anonymous "JustMe":

    Yes, voters hold some power to regulate marriage somewhat; but no, they do not have any power to regulate it in a manner that violates the U.S. Constitution, which is what they did.

    Also, the defendants were asked to itemize the apocalypse of dire "harms" they claimed might result from same-gender civil marriage. They utterly failed to prove any harm whatsoever. They couldn't prove it when they had months to do so, and they certainly can't prove it now.

  • 17. JustMe  |  December 22, 2013 at 11:13 am

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Nowhere in the US Constitution is marriage even mentioned. Please explain therefore, how the US Constitution, which does not even mention the subject of marriage, prohibits the people of a state from enacting a definition of marriage.

    Given that DOMA has been overturned and there is NO federal definition of marriage, how does a matter reserved to a state violate the US Constitution?

  • 18. StraightDave  |  December 22, 2013 at 11:33 am

    Do you really have that little understanding of the US Constitution, or are you just trying to stir up crap? If it's the latter, you have no chance. You're not talking to Fox News, you know. Most of the commenters on this site are far better informed than you are.

    So here's the scoop – the US Constitution is not a list of specific laws, but a set of general principles that all state and federal laws must be measured against. States are free to create whatever laws they want, as long as they don't violate the Constitution's principles. That's what happened here. Utah crossed the line by violating the 14th amendment, which was designed to insure all citizens get treated equally, regardless of the specific content or scope of a law.

    Utah said: "You guys can marry the person you love, the choice is entirely up to you. But you other guys can't. In your case, the government with provide you a list of officially approved choices, none of whom are likely to appeal to you." Somehow that doesn't sound very equal to me. So the law is struck down. See how easy that is?

  • 19. JustMe  |  December 22, 2013 at 1:41 pm

    Well that is where your understanding is incorrect. The constitution is not a set of "general principles."

    As the constitution itself says:

    "This Constitution,.., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

    In invoking the 14th amendment, these plaintiffs are saying that the US Constitution is SUPREME law and that when the 14th amendment was enacted it gave a man the right to marry another man REGARDLESS of sexual orientation.

    And I'm saying that the US Constitution says that a STATE has the power to define marriage and there is nothing in the Constitution about marriage.

    Therefore, this decision has a constitutional crisis in our, because it pits the constitutional powers of a state under the 10th amendment against the rights of an individual of that same state under the 14th amendment and finds that the definition of marriage as it was when the 14th amendment was enacted is unconstitutional.

  • 20. StraightDave  |  December 22, 2013 at 2:41 pm

    Right you are, JustMe!
    "the definition of marriage as it was when the 14th amendment was enacted is unconstitutional."

    It just took us almost 150 years to realize what it all meant. Society's knowledge and understanding has grown over the years, as it certainly should. We are older and wiser now. Justice Kennedy captured it very well in Lawrence v Texas:

    " Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.

    There is no constitutional crisis here. The 10th Amendment doesn't give a state a completely free hand or the right to violate the 14th Amendment. The Constitution must be taken as a whole. A state can't conform to only part of it and close its eyes to the rest of it whenever that seems inconvenient.

  • 21. davep  |  December 22, 2013 at 4:10 pm


  • 22. Jon  |  December 22, 2013 at 12:18 pm

    I'll take a stab at this for JustMe. While you may not agree with this logic, it's accepted US caselaw, and the logic the judges are following.

    You're right that marriage law (not reserved for Congress) devolves to the states, and the bill of rights was not intended to apply to state laws. However, after the Civil War, the 14th amendment was enacted, which states in section 1:
    "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; ***nor deny to any person within its jurisdiction the equal protection of the laws.***"

    There was much debate as to whether this applied the bill of rights restrictions to state laws, but the in the 20th century, the Supreme Court eventually decided that it did. See:

    So, you can see why state marriage amendments are subject to the bill of rights. And you have a bunch of case law (e.g. Loving v Virginia) creating a fundamental right to marry. Finally, the 5th & 14th amendments say that congress, and states respectively may not "deny to any person within its jurisdiction the equal protection of the laws." This is the equal protection clause you're hearing about.

    So, marriage is a fundamental right, and both federal and state laws must treat people equally under the law.

  • 23. JustMe  |  December 22, 2013 at 1:52 pm

    Its not that marriage law "devolves" to the states… it was never in the province of the federal government to start with. Thats why US federal courts dont have jurisdiction over divorce cases, child custody, child support, and the like.

    And its pretty damn ironic that federal judges depend on STATE law to marry people, since they dont have that power as a FEDERAL judge.

  • 24. Ned_Flaherty  |  December 22, 2013 at 1:38 pm

    To the forever anonymous, forever closeted "Just Me":

    It's true that the word "marriage" doesn't appear in the U.S. Constitution. It's also irrelevant. For example, "electricity" doesn't appear there either, yet we have thousands of state and federal laws about that.

    Your assumption that a word must literally appear in a document in order to be affected by that document is parallel to the thinking of the religious-superstitious crowd, who believe that things not described in their bibles can't possibly exist, and that hundreds of translations into other languages are all perfectly worded, and that ignorance of ancient culture doesn't matter.

    The federal judge already explained how the U.S. Constitution prohibits voters from applying local law in an unconstitutional manner. All your questions are answered in the ruling. Go read it. Multiple times, if you need to. With professional help, if necessary (which, apparently, it is).

    You assume — incorrectly — that there is "no federal definition of marriage." You are wrong. There is. The federal government uses each state's definition, which is why in 19 states (CA, CT, DC, DE, HI, IA, IL, MA, MD, ME, MN, NH, NJ, NM, NY, RI, UT, VT, WA) every same-gender civilly married couple is also, for all federal purposes, a legally married couple, with all of the 1,138 rights and responsibilities that the federal government reserves for married people.

    For future reference, any topic "reserved to a state" can still be unconstitutionally applied, and thus violate the U.S. Constitution, and thus be subject to overturning, as just happened in Utah.

  • 25. JustMe  |  December 22, 2013 at 2:06 pm

    As Scalia wrote in Windsor:

    "This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

    Too bad Shelby cant see the forest for the trees.

  • 26. Dr. Z  |  December 22, 2013 at 2:17 pm

    Scalia was dissenting. He lost.

    From what legal authority do the State or Federal Governments derive the power to deprive the right to marry from people of the same sex? Note that Shelby correctly pointed out that marriage is a fundamental right, according to 14 SCOTUS decisions since 1868.

  • 27. Ned_Flaherty  |  December 22, 2013 at 2:28 pm

    To the anonymous "Just Me":

    Both you and Scalia are missing the forests as well as the trees.

    1. Yes, the Supreme Court did have the power to invalidate the "democratically adopted" DOMA. It had the power, and it used it. Scalia's rumblings were in the minority opinion.

    2. You and your favorite phobic justice both forget that being "democratically adopted" never excuses any legislation from also needing to be constitutional. DOMA wasn't constitutional, so it's "democratic adoption" was irrelevant. DOMA §3 was overturned.

  • 28. Zack12  |  December 22, 2013 at 2:30 pm

    Funny,Scalia had no problem gutting the bi-partsian Civil Rights Act now did he?

  • 29. bythesea  |  December 22, 2013 at 2:48 pm

    Voting Rights Act but excellent point.

  • 30. grod  |  December 22, 2013 at 4:00 pm

    JustMe: Keep in mind that Justice Scalia was writing in dissent. While it may appear to you that Judge Shelby can not see the forest for the trees, I would encourage to keep an open mind. Neither you or I are constitutional lawyers or judges. Might we agree that Windsor has changed the reference point from which this case will be heard on appeal.

  • 31. Carol  |  December 22, 2013 at 6:56 pm

    Your train left the station in 1967, possibly before you were born, when the Supreme Court declared in Loving v. Virginia that a state and its voters could not constitutionally define marriage as between two persons of the same race. Judge Shelby's decision should not have surprised you and most certainly does not surprise Justice Scalia.

  • 32. weshlovrcm  |  December 22, 2013 at 4:14 pm

    Ned. Wonderful response!

  • 33. Dr. Z  |  December 22, 2013 at 2:10 pm

    Precisely, Amendment 10. I'm so glad you brought that up.

    The 10th Amendment makes it clear that the Constitution is not an enumeration of rights which the people have, but rather it is an enumeration of the powers that the government has (together with limitations on those powers.) That means there is no need to search the Constitution for the right to privacy in sexual relations or a right for people of the same sex to get married. Instead it's the other way around: since you don't want the State or Federal Governments to recognize same-sex marriage, you must make a case that these governments have the right to withhold that recognition from same-sex couples. And there you will encounter problems because the Constitution requires equal protection for all citizens under the law.

    In short, the part about "…or to the people" includes gay people. Not just the people you approve of.

  • 34. Steve  |  December 22, 2013 at 2:39 pm

    You are an idiot. It can't be said any more plainly.

  • 35. TedCruz  |  December 22, 2013 at 3:15 pm

    JustMe states the truth… you poll a small cross section and proclaim the "majority supports gay marriage". Bullshit.

    And just as we whipped cracker barrel and A&E…. we'll whip your asses too.

  • 36. Stefan  |  December 22, 2013 at 3:40 pm

    A&E is still thriving.

  • 37. davep  |  December 22, 2013 at 4:14 pm

    You must be one of those people who somehow thinks that constitutionally protected rights of a targeted group can be voted away by an unjust majority or an unjust legislature. You don't seem to understand that those scenarios are precisely why we have a Supreme Court in the first place. Try again.

  • 38. weshlovrcm  |  December 22, 2013 at 4:22 pm

    Why are militant anti-gay activists always see angry? I thought Jesus was supposed to bring joy–He certainly does in my life!

  • 39. Bruno71  |  December 22, 2013 at 7:08 pm

    Because they're losing. Badly. Every day. They have to look to places like Uganda for significant victories which don't entail some hideous southern restaurant chain restocking shoddy products from a contrived reality TV show.

  • 40. TedCruz  |  December 22, 2013 at 7:35 pm

    Losing… the fight hasnt even begun yet… you havent won ANY of the southern states… then you'll find out about war. Right now, you've been parading to victory in easy liberal left leaning west coast states… The real fight has only just begun.

  • 41. Bruno71  |  December 22, 2013 at 7:41 pm

    Ha. Let's see if Utah burns down this week. Meanwhile, regarding your southern states, those will all come at ONE time from a Supreme Court ruling. If you wanna burn yourselves down then, go right ahead. We'll just watch and see this revolution take place in sooooo conservative Mississippi and Alabama and Texas, when nothing's happened in "easy liberal left leaning west coast states" like Iowa and Minnesota.

  • 42. TedCruz  |  December 22, 2013 at 8:09 pm

    Iowa – idiots out wandering around


  • 43. Bruno71  |  December 22, 2013 at 9:32 pm

    Like a state full of Ted Cruzes & Sarah Palins eh? đŸ™‚

  • 44. TedCruz  |  December 23, 2013 at 4:25 am

    Hey – At least Ted Cruz isnt a bald faced liar like the doofus currently in the White House who has lost all credibility…

  • 45. Ian  |  December 23, 2013 at 5:35 am

    You mean "bold"?

    And you mean mean like the guy who said we should invade Iraq because they had imaginary WMDs? That kind of bold faced lie?

    Youre a special kind of stupid aren't you?

  • 46. Eric  |  December 22, 2013 at 3:51 pm

    Because the other Amendments also apply. In this case, the Fourteenth Amendment's equal protection under the law.

    Banning same-sex marriage can be constitutional, the state merely needs to come up with a compelling governmental interest and a law narrowly tailored to further that interest.

  • 47. JustMe  |  December 23, 2013 at 4:31 am

    And like the 11th Amendment , which bars suits against state officers in their official capacities in Federal Court?

  • 48. W. Kevin Vicklund  |  December 23, 2013 at 5:18 am

    …unless sovereignty has been waived, such as the waiver in the 14th Amendment.

  • 49. JustMe  |  December 23, 2013 at 7:18 am

    Yes but the 14th amendment waiver does not apply to a STATE… It applies only to state officials acting in their unofficial capacities.

  • 50. W. Kevin Vicklund  |  December 23, 2013 at 8:14 am

    Wrong, it applies to states as well as to state officials (otherwise the 14th Amendment would be unenforceable). The 11th can still limit the available options in such cases, such as suing for damages. 100 years of jurisprudence show that you are clearly wrong on this. You may disagree with the Supreme Court, but that is what you think it ought to be, not what it is.

  • 51. Matt N  |  December 22, 2013 at 7:55 pm

    Amendment XIV: " … nor shall any State … deny to any person within its jurisdiction the equal protection of the laws."

    Utah's marriage law is denying persons within its jurisdiction the equal protections of the laws, thus it is violating the US constitution. How is that not crystal clear, JustMe?

    Utah does have the power to regulate marriage, BUT IT STILL MUST CONFORM TO THE FEDERAL CONSTITUTION!

    By your claim, Utah could deny marriage to any race of its choice and to any religion of its choice. Silly…

  • 52. Craig Nelson  |  December 22, 2013 at 2:26 am

    But that is the very case at issue. The State of Utah has enacted a law which infringes the Constitution. The State has very little reasoning as to why this is necessary and has lost its case. The request for a stay is a request to continue breaching people's constitutional rights. If they lost the one case they will struggle to argue for a right to infringe the constitution for a little longer.

    When it comes to harms the same sex couples suffer great damage – in some cases irreparable, as do their children, whereas the State's harms are more on a theoretical plane rather than real.

  • 53. Straight Ally #3008  |  December 22, 2013 at 4:59 am

    Please, please enlighten us: how are they being hurt? How is the decision affecting their lives one iota? Compared to gay people, who are being denied a civil legal contract due to their orientation, an inherent quality. PLEASE tell us what the state of Utah can't articulate, we're waiting.

  • 54. Eric Koszyk  |  December 22, 2013 at 7:31 am

    The state in no way is harmed by gays and lesbians having the equal right to marry the person of their choosing. For you to say otherwise shows how ridiculous you are.

    #1 If the case is appealed and the state's position ultimately prevails, then the only people that are harmed are the gays and lesbians who have married in the meantime.

    #2 The state is actually benefitting right now, in terms of added revenues, due to the sale of marriage licenses and any additional tax benefits of weddings.

    #3 An electorate as a whole has never been seen as harmed by the results of an election being thrown out by a court. Examples are Prop 187 in CA, Prop 8 in CA and a case you might have heard of entitled "Gore V Bush".

  • 55. Craig S.  |  December 22, 2013 at 8:10 am

    Your argument that an act by the majority of the people in a state should be immune to the checks and balances required by the US Constitution is flawed. There is no irreparable harm in requiring state laws – and state constitutions – to comply with the US Constitution. The notion that "single judges" have no right or duty to rule on voter-passed referendums is an unfortunate misunderstanding of our system of government. You should read Judge Shelby's entire ruling, you will find it quite enlightening and instructive. There is no area of law – including marriage law – which is immune to the governing principles of the US Constitution. The states hold the power to decide what marriage is only to the extent that such determinations do not violate any provision of the US Constitution – including, as relevant in the current case, the Equal Protection clause and the Due Process clause. Judge Shelby found that Utah's marriage law violates both of these provisions of the federal Constitution. They therefore must be struck down. It has nothing to do with the number of people who want the provision in the law. It has only to do with whether it passes Constitutional scrutiny. For Judge Shelby to rule on this is Judge Shelby doing exactly what he has been hired to do.

  • 56. MightyAcorn  |  December 22, 2013 at 8:30 am

    Guys! There's no point in arguing with a troll who can't even spell "irreparable."

  • 57. Richard Weatherwax  |  December 22, 2013 at 10:09 am

    On the contrary. I enjoyed reading the well thought out replies to JustMe's. I am sure that visitors to this site will also be impressed. It also demonstrates that nobody here fears negative comments.

  • 58. Dr. Z  |  December 22, 2013 at 11:15 am

    For those who have come to the site recently, here's the difference: someone arguing against marriage equality is allowed to express their point of view here, but they had better be prepared to defend it because we will vigorously debate them.

    On the other hand, someone who visits this site to toss slurs and the f word at us will be reported as abusive and their comments taken down.

    That's a key difference between this site and NOM.
    NOM censors all pro-equality perspectives. Equality on Trial is devoted to the legal aspects of SSM, and any good lawyer must be familiar with the arguments on both sides of an issue (and their relative merits.)

  • 59. MightyAcorn  |  December 22, 2013 at 10:57 pm

    Just encourages 'em, but whatever floats your boat.

  • 60. Dr. Z  |  December 22, 2013 at 8:41 am

    The Supreme Court has ruled that the bare inability to enforce an unconstitutional law does not harm the State. How the law was enacted – whether by legislation or referendum – is completely irrelevant. The State must show some other evidence of harm. What would that be in this case? The extra effort needed to process the marriage applications will not be considered "harm" nor will the financial costs of paying equal benefits to both gay and straight couples. That means you've got nuthin'.

  • 61. Tom  |  December 22, 2013 at 9:32 am

    @JustMe, please try to better understand that there is much more to equal protection and due process provided by the 5th and 14th amendment, than a NOM talking point. Civil rights are not dependent on the outcome of an election, no matter how, even in Utah, a state may be LDS.

  • 62. Guest  |  December 22, 2013 at 11:53 am

    No, there is no harm, and the voters of Utah are not the enemy here. The enemy is professional, anti-gay, Christian/Mormon industry. Stop being a weasel and hiding behind the pseudonym of voters because everyone knows who is receiving their justified scrutiny. The professional, anti-gay, Christian/Mormon industry has created a mile high, stinking pile of poop, and it is time to mash their faces in it.

    Christian Inc., has volunteered for this position that they're in. They have no skin in this game except for their deliberate, willful attempts to turn AmeriKa in their personal Uganda. They're going to pay.

  • 63. Brian  |  December 22, 2013 at 5:19 am

    I'm not a lawyer, but I'd like to hear a lawyer's comment on my understanding. It seems to me that, if this ruling survives appeal, it's a really big deal. The same logic would apply to any state's ban on same sex marriage, yes? So any case brought in any state could cite this ruling. It's my understanding the ruling would apply throughout the district and, if taken to the US Supreme Court and upheld there, it would mean marriage equality nationwide, overturning all state bans to the contrary. Am I getting carried away on my own ignorant optimism? Or is this within the realm of the possible?

  • 64. Chad  |  December 22, 2013 at 6:29 am

    you are correct Brian. However, it's unlikely the US Supreme Court is going to take an appeal on this. They will let this be battled out in the Circuit Courts as long as possible – at least until we have 25 states or more.

  • 65. Dr. Z  |  December 22, 2013 at 8:34 am

    Even though the precedent wouldn't be binding on other circuits, they would certainly take note of it as the first or one of the first circuits to rule on the issue since Windsor. Just as Perry, the NJ SC, and the NM SC decisions will be noted as "judicial facts" (I believe that is the term, but I am just a court-watcher not a lawyer.)

  • 66. Colleen  |  December 22, 2013 at 11:30 am

    If the 10th Circuit hears the the appeal, and upholds Judge Shelby's decision, does that decision then automatically apply to the rest of the circuit (KS, CO, WY, NM, OK, UT) or would suits need to be brought to force the issue?

  • 67. Stefan  |  December 22, 2013 at 11:33 am

    Marriage for the entire circuit unless the Supreme Court grants cert and issues a stay.

  • 68. Colleen  |  December 22, 2013 at 11:54 am

    Wow, just trying to get my head around this. So on the other hand, if the 10th refuse to hear the appeal, the decision stands for Utah only, but cannot go on to be appealed to the US Supreme Court? Is that correct? Or is an appeal to the Supreme Court still possible?

  • 69. W. Kevin Vicklund  |  December 22, 2013 at 12:59 pm

    10th can't refuse to hear the appeal. That doesn't mean they can't dismiss an appeal due to a variety of procedural issues, though I doubt that that will be an issue, but even that can be appealed to the Supreme Court (and/or an en banc hearing of the full Circuit Court) which can be refused. So there will be some sort of ruling from the 10th, which likely will be appealled.

  • 70. Colleen  |  December 22, 2013 at 1:25 pm

    Thank you. The long-term implications here are fascinating.

  • 71. mtnbill  |  December 22, 2013 at 3:01 pm

    How narrowly the 10th circuit decision is written (if they have one) will determine whether its applicable to other states in the Circuit. Remember the 9th Circuit wrote its decision upholding Walker's decision, but so narrowly the decision only applied to California, and they used a different set of arguments. At the appeal level, the case starts afresh (except for the establishment of facts in the case, which are decided at the district level–there was no trial on the facts in the Utah case however).

    As I remember from the discussion on Prop 8, a district court's decision is not binding on other district courts, though they may take notice of it. In Judge Walker's decision, since he held a trial on the facts, his decision established what the facts are. In Utah, there was no trial on the facts, but or the merits of law (see the Utah decision).

  • 72. bythesea  |  December 22, 2013 at 8:52 am

    If SCOTUS merely waits until there is a serious Circuit split, I could imagine a scenario where ME becomes law of the land in most of the country (in relatively short time) except for the Fifth and Eleventh Circuits. Then time for a national ruling.

  • 73. Zack12  |  December 22, 2013 at 10:24 am

    I think that is exactly what they want to do. I do fear a backlash a la 04 against us,so we have to stay on guard.

  • 74. bythesea  |  December 22, 2013 at 1:11 pm

    There could be a political backlash, but I think if it happens at all would be much more short-lived and much less damaging or successful than in '04.

  • 75. Eric  |  December 22, 2013 at 3:04 pm

    I wouldn't fear a backlash. The lies of the anti-gay have been exposed for what they are and Americans don't like lies told about their family, friends, and neighbors.

  • 76. USA, Utah: Hearing on Mar&hellip  |  December 22, 2013 at 7:20 am

    […] Equality on Trial reports: […]

  • 77. shane  |  December 22, 2013 at 4:10 pm

    Chris Geidner reports
    Breaking: Tenth Circuit denied Utah officials' emergency request for a temporary stay in same-sex marriage case.

  • 78. RAJ  |  December 22, 2013 at 4:30 pm


  • 79. RAJ  |  December 22, 2013 at 4:37 pm

    Well, temporarily exciting — I guess their request didn't comply with the rules. Seems they have to go, first to the district court, if that doesn't work, they can try again.

  • 80. Chris M.  |  December 22, 2013 at 5:14 pm

    It looks to be like the Circuit Court wasn't too pleased with this request as it didn't address the usual criteria for such emergency action, like immediate serious irreparable harm that cannot be remedied in any other way, the likelihood to succeed on the merits, etc. In their petition, they basically just said that the district courts ruling is an abomination and every sane person would have to agree to stop this before the offices open on Monday. Basically, an insult to both courts that didn't go over too well.

  • 81. weshlovrcm  |  December 22, 2013 at 4:12 pm

    "Irreparable harm" is when the citizens of a state glibly march into the voting booth and vote away civil rights from other Americans, and then are told by the greedy, aggressive pro-homophobia lobby what they just did is constitutional and moral. Meanwhile people actually die before their loving long-term relationships can be deemed as "worthy" as those in which people sleep with the opposite sex. And all this so those wallowing in the sin of homophobia don't have to hear the truth that they are going to hell unless they repent.

  • 82. grod  |  December 22, 2013 at 4:33 pm

    At 9:00 am tomorrow, the district court with have a 'reply' from Attorneys for plaintiffs Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge, and any response to the 'reply' of the plaintiffs attorneys. Can any others briefs be received? How will this hearing play out. Given that Judge Shelby would not grant an oral request for a stay last Friday afternoon, can it be expected that the AG will request an oral granting of a stay at the end of the hearing? How likely is it that it will be granted?
    Hopefully any of these documents will be posted here.

  • 83. Equality On Trial10th Cir&hellip  |  December 22, 2013 at 4:42 pm

    […] Edge BostonTomorrow, the federal judge who struck down Utah’s same-sex marriage ban will hold a hearing on whether he should stay his decision and halt same-sex marriages pending the appeal of his […]

  • 84. StraightDave  |  December 22, 2013 at 5:33 pm

    UT Governor Gary Herbert is such a wimp!
    He sends this letter to all county clerks about how to handle the "stay" situation. In 2 short paragraphs he manages to say:

    1. "Many of you have requested guidance from the State as to how you should proceed."

    2. "Please consult with your county attorney and county council or commission for direction as to how to proceed."

    Way to pass the buck, Gov!
    Way to show leadership.
    Way to take a position (any position) and defend it.
    Way to propose a uniform statewide policy regarding a state law.
    Way to sow confusion and inconsistency among 29 different counties.
    Way to be the poster child for dereliction of duty.
    Way to resolve those uncertainties you fretted about.
    Way to let everyone know how you really feel: "I hate my job".

  • 85. grod  |  December 23, 2013 at 8:33 am

    express you view:

  • 86. Equality On TrialDistrict&hellip  |  December 23, 2013 at 10:50 am

    […] latest action from Judge Shelby follows a hearing this morning on the state defendants’ request, filed late Friday afternoon, to halt same-sex […]

  • 87. Equality On TrialDistrict&hellip  |  December 23, 2013 at 3:28 pm

    […] latest action from Judge Shelby follows a hearing this morning on the state defendants’ request, filed late Friday afternoon, to halt same-sex […]

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