10th Circuit denies stay; won’t stop Utah same-sex marriages
December 24, 2013
LGBT Legal Cases Marriage equality Marriage Equality Trials
The Tenth Circuit Court of Appeals has just refused the state of Utah’s request to stay the district court judge’s order and halt same-sex marriages in the state. The appeals court also called for the appeal of the case on the merits to be put on a fast-track.
The order concludes:
Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted. Accordingly, we deny Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal. The Clerk is directed to issue a separate order setting deadlines for briefing.
The state can ask the Circuit Justice for the Tenth Circuit Court of Appeals to review an application for a stay. The Circuit Justice there is Justice Sotomayor. She can decide to grant or deny a stay on her own, or ask the full Court to decide.
UPDATE 7:42PM ET: A reporter in Utah who has been following this story has received confirmation the state will ask Justice Sotomayor for a stay:
URGENT: #Utah AG's Office confirms to @fox13now it will ask U.S. Supreme Court Justice Sotomayor for an emergency stay. #Amendment3 #utpol
— Ben Winslow (@BenWinslow) December 25, 2013
Thanks to Kathleen Perrin for this filing
151 Comments
1.
Steven | December 24, 2013 at 4:25 pm
omg this is so great news, What are the chances for UTAH to appeal to SCOTUS?
2.
Eric | December 24, 2013 at 4:26 pm
99.99% chance of appeal. 0.01% chance of getting a stay issued by SCOTUS.
3.
Bruno71 | December 24, 2013 at 4:32 pm
Can they appeal en banc first?
4.
Scottie Thomaston | December 24, 2013 at 4:36 pm
No, they have to ask the Circuit Justice for the Tenth Circuit first. That's Justice Sotomayor. She can decide herself or ask the full Court.
There's also another wrinkle: if she decides herself, the losing party can ask another Justice or the full Court. But the other Justice could also ask the full Court to decide.
5.
Bruno71 | December 24, 2013 at 4:38 pm
I think in this case there may be a good chance they exhaust EVERY possibility. They really want this stopped toot sweet.
6.
Mark | December 24, 2013 at 4:47 pm
If the losing party can ask another Justice, which Justice would it be?
7.
Bruno71 | December 24, 2013 at 4:49 pm
Thomas or Scalia.
8.
Rose | December 24, 2013 at 5:07 pm
Neither Scalia or SCOTUS wants ANOTHER Marriage case in their hands at this time!!!
9.
Dr. Z | December 24, 2013 at 5:18 pm
Assuming Sotomayor denies the stay as expected, going beyond to try to get one of the conservative justices to get the full SCOTUS to issue a stay would be a catastrophic blunder for their side. As I read Kennedy, he would not vote to stay, considering (mong other things) the thousands of children of SS couples who would be harned. He remarked on this in the Windsor hearings.
The upshot is that the SCOTUS would clearly telegraph its intent to every federal judge in the country. The effect on litigation would be difficult to understate. We could have SSM legalized nationally in a matter of months.
IF.
If the State of Utah is stupid enough to try and bypass Sotomayor.
Keep your fingers crossed. Merry Christmas/Happy Holidays, everyone!
10.
Bruno71 | December 24, 2013 at 5:29 pm
Even if that doesn't happen, it may now be the expectation that a positive ruling at the district court level will result in marriages immediately and without stay. That could bring a number of new states into the fold in 2014 and 2015.
11.
Dr. Z | December 24, 2013 at 5:40 pm
Ohio and Oregon are a house of cards at this point. One serious legal challenge and their state DOMAs are gone.
Nevada, Michigan, Pennsylvania are ready to fall too.
12.
Bruno71 | December 24, 2013 at 5:42 pm
And Virginia too. The only thing is, we need the positive result at the District level.
13.
Bill | December 24, 2013 at 5:44 pm
What are the statuses of the NC case, the TN case, and the KY case?
14.
Bruno71 | December 24, 2013 at 5:47 pm
As far as I know, they're all still waiting to be heard at their respective district courts. However, the cases in TN & KY could be made moot through a pro-equality ruling in the Michigan case at the Appeals Court level, if it advances there.
15.
Chad | December 24, 2013 at 6:19 pm
i don't think they can ask another Justice
16.
Scottie Thomaston | December 24, 2013 at 4:53 pm
I'm not sure. I think I've read they can ask any other one. But I can't say I'm 100% certain on that.
17.
jpmassar | December 24, 2013 at 5:12 pm
HERE ARE THE RULES:
http://www.supremecourt.gov/publicinfo/reportersg…
(thanks to AdamB at DKos)
18.
Scottie Thomaston | December 24, 2013 at 5:26 pm
So basically they CAN ask any other one, but past a certain point the full Court would hear it.
19.
jpmassar | December 24, 2013 at 6:27 pm
Still doesn't make sense.
They go to Sotomayer. She denies the stay.
Then they go to Thomas. He grants a stay.
Game over? Seems that way in one sense.
But it also seems from other clauses that one they
find a judge to grant the stay (save the judge with
authority over that Circuit) it goes to the full Supreme Court.
Otherwise where they say that five judges deny the stay means that it is dead doesn't make sense, because the sixth judge could grant a stay!
20.
Bruno71 | December 24, 2013 at 6:37 pm
Here's another question. Sotomayor denies stay. Thomas grants stay. Can our side then approach SCOTUS about it? It's rather unknown territory it seems.
21.
Leo | December 24, 2013 at 9:03 pm
Yes, the rules say if a Justice grants stay, the other side can ask the full court to vacate the stay. But they also say it's practically never done.
22.
Lymis | December 25, 2013 at 7:45 am
Given the overwhelming logic against a stay, I'd say that if it is necessary, this might be a case where what is "practically never done" would be fully justified.
23.
Scottie Thomaston | December 24, 2013 at 6:42 pm
According to an old SCOTUSBlog post that I've been looking for since this post went up, it's most likely that if the state tried to keep referring to other Justices the second Justice to be asked would simply ask the full Court. But I can't find the post and it wasn't specific to marriage equality anyway, just discussing that procedure.
I agree their rules are ridiculously confusing.
24.
Bruno71 | December 24, 2013 at 6:52 pm
I can understand requesting something akin to an "en banc" if you don't like what your Circuit Justice has to say, but just to cherry-pick any other justice to overrule them? It seems not right.
25.
sfbob | December 24, 2013 at 10:22 pm
The request for "en banc" review doesn't come from the appellant but rather from the Circuit Justice, apparently at his or her discretion. Or else it comes automatically if the appellant keeps getting turned down.
26.
sfbob | December 24, 2013 at 9:49 pm
Page 4 of the linked guidance has the answer:
"If a Justice acts alone to deny an application, a
petitioner may renew the application to any other
Justice of his or her choice, and theoretically can
continue until a majority of the Court has denied
the application. In practice, renewed applications usually are referred to the full Court to avoid such a prolonged procedure."
27.
Lynn E | December 25, 2013 at 10:39 pm
Is there a history of a Justice granting a stay outside of their assigned Circuit? I would imagine it would be rare without placing it before the full Court. Utah will exhaust all means at their disposal, if you doubt this just research the Utah Cable TV Decency Act. They simply cannot conceive that they have been wrong.
28.
sfbob | December 25, 2013 at 11:43 pm
I assume that it's happened since it's referred to in the referenced material (without using such terms as "unprecedented"). But I would think it's relatively rare. The Utah AG's office might presume it's going to get some sort of special treatment for its requests; that doesn't mean the Supreme Court justices, either individually or collectively, are necessarily inclined to do as the state wishes them to do.
It has been suggested by someone else here further down that the state isn't likely to have much success by shopping for a more favorably-inclined justice if Justice Sotomayor fails to grant a stay, due to collegiality. I don't think that should be minimized. First of all there are some unlikely friendships among the various justices and they really do need to work together. Unless a second justice would be willing to put that sort of thing on the line and have very good reasons for doing it, I suspect that the state is going to be disappointed. At any rate I certainly hope they are.
29.
Guest | December 25, 2013 at 1:56 am
Sotomayor won't issue a stay. Getting a stay from another Justice (Scalia, Thomas) is possible but that opens up another can of worms. Circuit Courts have assigned Justices fro a reason. Do they want to risk retribution in other cases from Sotomayor? Scalia might have enough common sense to see this but Thomas is pwned. He'd do it. Sotomayor needs to put the fear of Latina vengeance into him.
Stay or not, Utah is in trouble at the 10th. Shelby eviscerated opposing arguments. How is any justice at the 10th going to find error enough while facing Kennedy DOMA language to call for reversal of Shelby 's ruling? Not going to happen.
When Shelby's ruling is upheld at the 10th it can be applied to Wyoming, Kansas & Colorado.
30.
Rebecca | December 25, 2013 at 7:00 am
I doubt that, since it was a challenge to Utah's constitution and state laws alone. i don't think the 10th Circuit judges would expand the ruling to cover the other states in the Circuit. On the other hand, when it reaches the Supreme Court (when, not if), the Supremes could use it as a Loving v. Virginia vehicle.
31.
Lymis | December 25, 2013 at 7:50 am
Yes, but the reason why it was struck down was a combination of the infringement of a fundamental right AND clear and overwhelming violation of the 14th Amendment. If the 10th upholds that, the same ruling applies to all the states in the circuit.
It wasn't based on anything unique in the Utah constitution, and the 10th can't declare the federal Constitution only applies uniquely to Utah.
It might require an actual lawsuit in those states to apply, but with that precedent the outcome would be a foregone (and nearly instant) conclusion. The ruling would be binding on every district judge in the circuit.
32.
jpmassar | December 24, 2013 at 4:53 pm
Seriously? The losing party can just pick and choose the Justice they want to render a favorable decision? That seems ridiculous.
33.
Bruno71 | December 24, 2013 at 4:54 pm
They can't at first, but they have the option to if the Circuit Justice's decision isn't to their liking. In fact, I thought I heard once that they can keep asking individual justices one by one. Is that correct?
34.
jpmassar | December 24, 2013 at 4:59 pm
That's a pretty absurd procedure. I would be surprised if it were the case. But stranger things happen.
35.
sfbob | December 24, 2013 at 5:06 pm
According to the court's rules on stays, which can be found at:
http://www.supremecourt.gov/publicinfo/reportersg…
the appellant can theoretically keep asking until a majority of justices have denied their request, at which point it is referred to the entire court, but in practice, once an appellant starts making multiple requests the appeal goes before to the the entire court.
36.
Bruno71 | December 24, 2013 at 5:16 pm
Which probably explains why the California bigots were loath to continue after petitioning Kennedy, and his denial, this past summer on the stay issue.
37.
Mike in Baltimore | December 24, 2013 at 5:34 pm
If I remember correctly, Oily Taintz asked three different justices for a stay in one of her 'cases' (again, if I remember correctly, a contempt of court charge). After the third denial, the fourth request was diverted to a full en banc hearing, and the stay was denied.
38.
Scottie Thomaston | December 24, 2013 at 5:07 pm
If I recall in a recent case, maybe one of the contraception cases (?) they asked the Justice they were required to ask, then when rejected they simply picked another to ask. Of course the Circuit Justice gets the initial request.
39.
Rose | December 24, 2013 at 4:29 pm
Awesome news……..at least for now…….I'm certain that the State will try an appeal to SCOTUS!!!
40.
Stefan | December 24, 2013 at 4:33 pm
Sotamayor likely won't issue a stay.
41.
James UK | December 24, 2013 at 4:33 pm
AG Utah has confirmed to Fox 13 Utah that an application for a stay will be made to Justice Sotomayor.
42.
Bruno71 | December 24, 2013 at 4:36 pm
My feeling is that she would defer to the 10th Circuit's decision on the stay, whatever it was. I obviously don't have anything to back that opinion up, but I hope it's correct.
43.
Tyler O. | December 24, 2013 at 4:43 pm
No way Sotomayor will issue stay.
44.
cr8nguy | December 24, 2013 at 4:49 pm
i would bet Sotomayor would refer to the whole court. the chances of a 5-4 split on the stay would be more likely than if she denies and they immediately go to Scalia…who would probably issue it himself.
45.
Rose | December 24, 2013 at 5:03 pm
Neither Scalia or SCOTUS wants ANOTHER Marriage case in their hands at this time!!!
46.
Mike in Baltimore | December 26, 2013 at 12:54 am
Probably not, Rose, but a request for stay is NOT a guarantee that there will be an appeal of the Circuit Court's decision on the case to SCOTUS, nor is it a guarantee SCOTUS, if it receives an appeal of the case, will grant it cert.
In other words, an appeal of a declination to stay a decision is NOT an appeal of the case. It may give an indication of how SCOTUS will rule, but there is no guarantee of that, either.
47.
Rose | December 26, 2013 at 3:45 am
I do agree with ya, my point was that for the State to go looking for a Justice to grant them a Stay would probably NOT be in their best interest just in case Justice Sotomayor should deny them and I believe she will and I believe SCOTUS does NOT want to get involved with another Marriage Equality fight so soon after this last June.
48.
Mike in Baltimore | December 27, 2013 at 4:03 am
Rose?
What part of "a request for stay is NOT a guarantee that there will be an appeal of the Circuit Court's decision on the case to SCOTUS, nor is it a guarantee SCOTUS, if it receives an appeal of the case, will grant it cert" do you not understand?
I did NOT speak of it being in anyone or anything's best interest, but neither did you in your first post on this subject.
And if SCOTUS does not want a case, they can always not grant it cert when the appeal of a decision gets to them. Unless there is a 'Circuit split', which almost guarantees SCOTUS will be involved in deciding a case or two, whether it wants to or not.
49.
Chad | December 24, 2013 at 6:40 pm
no way she will refer to the whole Court. none of them want that drama now. she's on solid footing to deny it herself
50.
Bruno71 | December 24, 2013 at 6:42 pm
But then the Utah AG can petition Thomas or Scalia, and they may grant the stay. What then? What people are saying is that perhaps it would be more logical to just refer it to the full court in anticipation of the Utah AG doing this.
51.
Stefan | December 25, 2013 at 12:51 pm
VERY RARELY are judges petitioned outside of their designated circuit(s).
52.
Bruno71 | December 25, 2013 at 1:46 pm
Leave it to the religious nutjobs to be the exception to the unwritten rule.
53.
Dr. Z | December 25, 2013 at 2:45 pm
I wouldn't sweat it. Sotomayor is a Windsor justice. What's more interesting to me is that Sotomayor, along with Kennedy, Alito, and Thomas dissented from the SCOTUS judgement in Hollingsworth and Perry, the Prop 8 trial. What was the strategy behind her reasoning in Hollingsworth? I would LOVE to be a fly on the wall at SCOTUS when the stay is discussed for this case. If Scalia attempted to stay this case the five Windsor justices would immediately intervene and force a vote Scalia could not win, and he knows it. Whatever else Scalia might be, he's not an idiot. (Notice I didn't say fool.)
There is zero chance that SCOTUS will stay this ruling. Utah has a weak and poorly written argument that has lost at both the District and Appelate levels, so SCOTUS isn't going there.
Yet, Utah's AG office is in a state of turmoil. AG Swallow, who crafted their legal strategy, was forced to resign earlier this month under threat of criminal investigation. Acting AG Tarbet, who wanted the AG position, was associated with Tarbet and also seems to have a narrow background in taxation and revenue. Then he badly blundered the state's case and stay request. I'm speculating, but I think everyone in the AG office assumed the LDS church had already done its usual job in getting the "right" people in place, so this case would just to have to wait because they have other fires burning.
The newly named AG was the unsuccessful challenger to Swallow in the last election; his competitors for the AG job were Tarbet and Bob Smith, who's evidently some kind of social conservative legal heavyweight at BYU. He was backed by the Utah Eagle Forum and the local Tea Party. The fact that the Governor picked the Chamber-of-Commerce type Reyes to be the new AG over Tea Partier Smith is also very interesting.
Apparently the first thing Reyes did was to fire the whole Utah Office of the AG and make them all reapply for their jobs. Tarbet is being kept on to help in the transition but you can be sure Reyes won't want him around longer that absolutely necessary.
This is just an outsider's conjecture, I only know as much about Utah politics as I've read about since last Friday when this broke. What do the Utahns here have to say?
54.
Rose | December 24, 2013 at 5:02 pm
SCOTUS really DOESN'T want to get involved with another marriage case so soon……my guess is that Justice Sotomayor will NOT grant the stay either…….and this is what happened in New Jersey, at least Governor Christie was smart enough to read the writing on the wall……this Governor AIN'T so bright!!!
55.
Jim | December 24, 2013 at 5:04 pm
Remember the governor is controlled by the Mormon Church. He does what he is told to do.
56.
Rose | December 24, 2013 at 5:06 pm
Again, SCOTUS is NOT going to want to touch a Marriage Equality case so soon…….in my opinion they are going to pass this unless they are willing to make Marriage a FUNDAMENTAL right for all regardless of gender make-up!!!!
57.
Craig Nelson | December 24, 2013 at 5:34 pm
Not so sure about that. Remember there are 4 justices who most probably back marriage equality and Kennedy wrote Windsor – he's still the swing vote. So there are 5 votes for marriage equality but they wish toproceed incrementally to allow the issue to percolate. This would be an ideal opportunity for the 5 justices behind Windsor to signal the direction of travel. There are quite a few advantages to that. There would never be a stay in future marriage equality cases for one thing (thank you Utah). For another, it signals very clearly to the country and legal system what's about to happen and makes it much less likely there'll be a final marriage equality SCOTUS ruling and less likely states will appeal to the Circuit of Appeals.
Utah might even think twice about appealing to the 10th circuit (a long shot) because the writing is well and truly on the wall! Happy days.
58.
Bruno71 | December 24, 2013 at 5:40 pm
Not to mention, if they lose that appeal, which they have GOT to be quite nervous about right now, it brings marriage equality to:
Wyoming, "The Inequality State"
Kansas, "The What's the Matter With… State"
Oklahoma, "The Hell on Earth State"
Colorado, "The We Didn't Enact an Anti-Pot Amendment State"
That'd be a lot on their shoulders if they lost.
59.
Bill | December 24, 2013 at 5:47 pm
I gather that 9th Appeals is going to deliver a favorable ruling in Sevcik- what are the full implications for the Idaho case if this happens?
60.
Bruno71 | December 24, 2013 at 5:53 pm
It depends how broadly the 9th were to rule. They could use a rationale that states can't grant marriage rights without calling it marriage, as Nevada has done. That would limit the ruling to Nevada and Oregon, so the Idaho case wouldn't be moot. They could broadly rule against marriage bans, which would make the Idaho case moot. I would think given some of Kennedy's statements this past summer, they'll rule on the broader side.
61.
Lymis | December 26, 2013 at 9:55 am
I'm not sure that's reasonable. They may not WANT to touch one, but it's not like they can put the brakes on. A number of other cases were already in progress when the Windsor ruling came down, and the Windsor ruling was hardly going to slow down lower court cases.
Whatever they want, they had to realize more case were coming at them, and soon.
62.
DavidAZ | December 24, 2013 at 5:49 pm
My thought is the Governor of Utah may be getting a few terse phone calls from his fellow bigot governors in Oklahoma, Kansas and Wyoming. My guess is they'll be telling him to calm the f–k down. The last thing they want is to get the Supremes all pissed off by Utah trying to throw it's imaginary weight around SCOTUS. Window shopping for a sympathetic judge will certainly do just that. If the 10th Circuit puts this case on a fast track appeal and Utah loses, then the rest of the 10th District states go down with them. The ultimate nightmare for the bigots is that it won't go before SCOTUS for another year or so. In the meantime, and with a long memory of this judicial slight, Judge Sotomayor will rub salt in the wound by denying a carte blanche stay for all those states affected. LGBT folks throughout the mid-west will be happily exchanging vows thanks to an over zealous Utah governor.
63.
Tyler O. | December 24, 2013 at 6:00 pm
The one state I want to see with marriage equality more than any other is Oklahoma. My God, the breakdowns that would occur! ^___^
64.
Dr. Z | December 24, 2013 at 6:46 pm
As an ex-Sooner I couldn't agree with you more!
65.
KarlS | December 24, 2013 at 7:02 pm
As a current and mostly lifelong Okie (40 out of my 68 years), I'm not at all sure the rank and file citizens are all really as insanely bigoted as the media paints us (or them)…huge chunks of OK are really Democrats (and yes, some are the Dixiecrat flavor) but actually do have a fair amount of live and let live in their philosophy…the attempts of our national Democrats to limit our access to defensive firearms have alienated a LOT of our mostly and historically loyal local Dems…and that's another discussion, but as a gay man I hold our 2nd Amendment rights as sacred as all the others in the Bill of Rights. Yes, we did elect 2 idiots to the Senate and have a crazy woman, a Palin acolyte as Governatrix but I don't personally know many people who think that was a wise choice.
66.
Bruno71 | December 24, 2013 at 7:06 pm
I won't go into all that gun stuff but regarding the fair amount of live & let live types…that could describe any state labelled "conservative" or something similar. I'm sure about 20% of the people of Oklahoma voted against banning gay marriage, as is the case in the other states that have the highest populations antithetical to gay rights. And "liberal" states like Massachusetts have whack-jobs like MassResistance, etc. But generally, Oklahoma is surely at the farthest conservative end of the spectrum when it comes to attitudes about its LGBT citizens.
67.
Dr. Z | December 24, 2013 at 7:18 pm
The voters of Oklahoma enacted a prohibition on Islamist Sharia Law I believe? It takes a special kind of crazy to imagine there was any chance for the State of Oklahoma to come under the dominion of Shara Law.
68.
jpmassar | December 24, 2013 at 9:01 pm
Better safe than shari
69.
Fluffyskunk | December 24, 2013 at 9:42 pm
Sharia law and the religion of Islam are inimical to LGBT individuals everywhere. Even if there was no chance of my state of residence coming under its dominion, I would have still voted for a similar amendment if only to send a message. Have you seen what's happening in Europe?
70.
Zack12 | December 24, 2013 at 9:45 pm
Not like the Christian extremists are any better.
71.
Dr. Z | December 25, 2013 at 6:34 am
Oh yes I'm quite sure the entire world took careful note of the disapproval registered by the voters of Oklahoma and altered their religious beliefs accordingly. (That would be the rest of the world most Oklahomans have never visited because they don't believe in airplanes and haven't traveled further than Texarkana.)
72.
Steve | December 25, 2013 at 6:44 am
The stupid thing with this crap is that the same people have no problem enacting laws based on the Bible.
73.
Don | December 24, 2013 at 9:58 pm
Lol, not sure you're helping your case…
74.
Fluffyskunk | December 25, 2013 at 1:06 am
Don, not all LGBT people are liberals. We're all over the political spectrum. Do you want to make it easier or harder for those of us to the right of center to come out of their closets and help convince their peers that being anti-gay is not an integral part of a conservative political ideology, that you don't have to live a lie just because you believe in economic freedom and 2nd amendment rights? That traditional family values can be upheld even if some parents – or couples who choose not to have children – are the same gender? Do you want these people to stay in their closets or come out and help change their peers' minds about the rest of us? It's your choice!
75.
Gregory in SLC | December 25, 2013 at 6:21 am
I'm liberal, but admire conservatives like John Huntsman, our former Governor:
http://www.theamericanconservative.com/articles/m…
76.
John | December 25, 2013 at 11:23 am
If you post on guns, "economic freedom," or Muslims (some of whom are our LGBT brothers and sisters), you should expect some people to disagree.
77.
Fluffyskunk | December 25, 2013 at 10:59 pm
And I do. Unlike the NOMbies, I understand that my right to free speech does not give me the right to uncontested speech. 🙂
78.
Zack12 | December 25, 2013 at 3:22 pm
I have no problem with that Fluffly. My issue is with painting one religion as bad and whitewashing what the so called "Christians" are doing.
That India Supreme Court ruling a couple of weeks ago? They took inspiration from Scalia and Thomas in their ruling.
NOM has been helping push the anti-gay laws in Russia and Africa has become the testing ground for the Religious Right.
All I'm saying is don't smear one religion,which DOES have activists pushing for change and ignore others.
79.
Mike in Baltimore | December 25, 2013 at 3:15 am
The last time ANY counties in Oklahoma voted for anyone but the CONservative Presidential nominee was in 2000.
The last time the state of Oklahoma voted for anyone but the CONservative Presidential nominee was in 1964.
That is considered an almost convincing argument that the state is not filled with 'moderate' voters. If the voters were 'moderate', there would almost certainly be a bit more moderation in the voting pattern for Presidential nominees.
Since I grew up in Indiana, lived there for almost 23 years, and lived within 25 miles of a county (Kosciusko) that has not voted for the Democratic Presidential candidate since before Eisenhower (1952 election) (yes, Kosciusko County voted for Goldwater in 1964), I have a pretty good grasp of CONservative nuttiness.
80.
Guest | December 24, 2013 at 10:35 pm
Florida too, that is home to the most lying, violent, hateful anti-gay-Christian Coalition lunatics, and their grand master Jeb Bush.
81.
Bruno71 | December 25, 2013 at 9:16 am
Florida has some major wingnuts but it's nowhere near Oklahoma in conservatyness.
82.
Bill | December 24, 2013 at 5:53 pm
I'm wondering if the Colorado House leadership is going to re-think their timeline, which has been to hold a referendum in 2016. In light of very recent events, they really ought to act in the coming term
83.
Bruno71 | December 24, 2013 at 5:58 pm
The ideal scenario is to keep it out of the hands of the majority voting on the minority's rights. If Colorado thinks they could get a positive ruling from the 10th Circuit, they're more likely to abandon the referendum than go ahead with it.
84.
SPQRobin | December 24, 2013 at 7:34 pm
But eventually, even if declared unconstitutional, we should preferably get all the anti-gay constitutional amendments out of the state constitutions. And support in Colorado is high enough for it to win in a 2014 or 2016 referendum.
85.
Bruno | December 24, 2013 at 8:17 pm
True, though I think we'd probably want to do it at a time where the outcome wasn't in any doubt whatsoever and we could win with 3/4's of the vote or more. Part of the problem with these votes are the wringer it puts us through emotionally.
86.
Chuck in PA | December 25, 2013 at 6:33 am
2016 is a wise choice since Democrats come out in droves in the presidential election year. The likelihood is that a pro-Marriage Equality candidate will be at the top of the Democratic ticket, and will speak clearly and loudly on this issue. Better to have a near certainty of success than a clear possibility of defeat in 2014 if the down ballot Democratic candidates don't inspire a robust turnout. But a 10th Circuit favorable ruling applying to all states in the Circuit between now and 2016 would be just fine too.
87.
bythesea | December 25, 2013 at 6:55 am
I'm really starting to think this fight for ME may be effectively over by 2016 or even sooner now. Honestly.
88.
Valquiria | December 25, 2013 at 7:02 am
At this point, I strongly expect Colorado will have judicially mandated ME before they have voter-approved ME.
89.
bythesea | December 25, 2013 at 8:32 am
I think there is a very strong probability that the 10th will uphold the Utah ruling in the expedited appeal and then SCOTUS won't hear a further appeal. If so ME arrives in CO much sooner than it could have through a vote.
90.
Mike in Baltimore | December 27, 2013 at 4:32 am
And the advantage is when it is judicially mandated Marriage Equality, there usually are NO 'religious rights' included to get more votes for the bill.
If the bigots are so afraid of ME causing them to marry a same sex couple, then how are religious institutions now able to not marry people they don't want to marry?
91.
StraightDave | December 27, 2013 at 5:06 am
I don't think most of them really believe that will happen at all. It's just a scare tactic to try to scuttle the entire bill…. mixed with a little unthinking panic….. mixed with trying to use religion as the thin end of the wedge to gain more extensive fake-religious exemptions.
Most of the religious exemptions being approved these days are no different, IMO, from what the 1st Amendment already provides. I think they're just a fig leaf for the GOP to be able to claim they achieved something useful rather than admit they got blown out.
92.
Bruno71 | December 27, 2013 at 9:03 am
If marriage equality "sticks" in Utah, I predict the republican legislature will pass draconian religious exemptions that includes "protecting" businesses and individuals with religious objects to SSM. It'll make the laws in other states look like nothing.
93.
Ned_Flaherty | December 28, 2013 at 2:41 pm
"My business must discriminate against customers because my religion makes me do it" is not defensible, and always loses.
The more draconian a religious exemption is, the better, because that just helps ensure that all such measures get overturned in court.
The infamous 3 cases of the photographer, baker, and florist all show that.
94.
Bruno71 | December 28, 2013 at 2:48 pm
Those cases all arose in states that have public accommodations laws that include sexual orientation. This is Utah.
95.
Ned_Flaherty | December 28, 2013 at 4:59 pm
In the 3 now infamous "religious exemption" cases (photographer, baker, florist), the arguments given to justify discrimination all failed.
Those same arguments, if offered to defend draconian religious exemptions, would fail again, and for the same reasons.
You don't need a public accommodations law to show that a draconian religious exemption law is unconstitutional.
96.
Bruno71 | December 28, 2013 at 5:48 pm
You don't need one, but it sure helps. It's uncharted territory, but I agree that courts would likely side against such perpetrators even without one. The problem is, without those laws, there's no set standard to guide people as to what does and does not specifically constitute illegal discrimination against gays and lesbians.
97.
MightyAcorn | December 25, 2013 at 8:34 am
I wish I could believe that, too, but I think the Deep South is going to hold out on a "State's Rights, by God!" platform. They have a history of doing that, you know.
Still: UTAH!
98.
bythesea | December 25, 2013 at 8:42 am
Too late though.
99.
Dr. Z | December 26, 2013 at 3:41 am
When we get to 26 states with marriage equality it's over and everyone will know it. We're at 18 now. OH and OR bring us to 20. Adding MI+NV+PA, that's 23 – plus if we get NV there may well be other states in the 9th Circuit that come along like AZ+AK+MT+ID which would put us at 27. We could reach a majority of states for marriage equality in a couple of months – perhaps by spring, and almost certainly by the time SCOTUS takes up the next case.
100.
StraightDave | December 26, 2013 at 7:41 am
There's also the rest of the 10th Circuit: WY, OK, KS, CO (for a couple reasons). If a stay doesn't happen for UT, then a stay won't happen for the expedited 10th's ruling next year. Let the crumbling begin.
101.
Octa | December 26, 2013 at 7:55 am
Plus if we get MI, then the rest of the 6th circuit, TN and KY will likely gain marriage equality if 6th rules in our favour. No way that Snyder won't appeal.
102.
Lymis | December 26, 2013 at 10:03 am
I agree with you in principle, but it really depends on what you mean by "get to" 26 states.
The idea is that once a majority of voters and legislators in a given state support marriage, the possibility of a federal amendment banning same sex marriage evaporates.
And yes, once a state actually has marriage equality, however they got it, so far, it correlates to a very rapid increase in support for it.
I'm not sure how well that translates to, say Wyoming "getting" marriage equality because the 10th upholds the ruling for Utah.
But, it's not 26 states we need, because you need 3/4 of the states to ratify a federal amendment. I think we've solidly got the 14 we need to keep that from happening.
103.
bythesea | December 26, 2013 at 10:12 am
Things may potentially go back and forth in terms of progress, but I think the prospect of an FMA is basically nil even before you factor in the number of states with ME already.
104.
Ned_Flaherty | December 28, 2013 at 2:48 pm
No, we're at 19 now.
DC (District of Columbia) may not be a "State" (with a star on the flag), but it is nonetheless a "state" (a government). The land is part of America, Its residents are Americans, subject to whoever is in the White House, served by the U.S. Postal Service, protected by the U.S. military, paying federal taxes, and who elect a Representative to Congress.
105.
bythesea | December 28, 2013 at 5:38 pm
True, but DC still is irrelevant in terms of ratifying an amendment. Only state are relevant to that.
106.
Bruno71 | December 28, 2013 at 5:52 pm
Also, there are other jurisdictions, such as the Navajo Nation, that are not subject to the marriage laws of their respective states.
107.
Ryan K. | December 24, 2013 at 5:54 pm
Quite telling that the stay was not granted, and the two most important of the four factors, chance of success on appeal and irreperable harm if not granted, were heavily weighed in the decision. And this was by two Circuit Judges – one an Obama nominee, the other GWB nominated. Justice Sotomayor will deny the stay.
108.
Zack12 | December 24, 2013 at 6:16 pm
And from what I've read,the GWB judge makes Clarence Thomas look moderate at times.
109.
Zack12 | December 24, 2013 at 6:18 pm
As others have mentioned,you can be sure the govs of WY,KS and OK are calling Gary Herbert right now and telling him to give it up.
They do NOT want to see marriage equality come to their states on their watches.
110.
Dr. Z | December 24, 2013 at 6:34 pm
Or else they're doubling down, sending amicus briefings from their AGs to support Utah's stay request. That's what I'd guess (can you even submit an amicus briefing on a stay request?)
111.
SoCal_Dave | December 24, 2013 at 7:32 pm
I don't know anything about amicus briefings on a stay request, but I agree that doubling down is a distinct possibility. Most posters on EOT have been commenting using logic and thoughtul analysis. That's not how these folks roll. They are less concerned about the final outcome than they are about looking like they're putting up a good fight. Remember the gov't shutdown. It was insanity and everybody knew it. But they did it anyway just to look like tough guys to their insane base.
112.
JamesInCA | December 24, 2013 at 11:09 pm
Gov. Herbert is up for re-election in 2016, and won't be answering to the voters of WY, KS, or OK. Nor will the voters of UT hold him responsible if appealing a pro-marriage-equality court decision leads to legalization throughout the circuit. But they will hold him responsible if he throws in the towel. You can expect the state to fight tooth and nail.
113.
lagay | December 25, 2013 at 12:08 am
Let 'em fight tooth and nail. The sooner more dominoes fall, the better.
114.
palerobber | December 25, 2013 at 9:11 am
keep in mind Herbert is not particularly popular in the state and the UT GOP has a primary process that greatly exaggerates the power of their activist base.
115.
Mike in Baltimore | December 25, 2013 at 3:39 am
Right now, I'd surmise that the govs of WY, KS and OK are calling Gary Herbert and telling him to give it up, but doing it out of the public spotlight.
I'd also surmise that the public will hear that they are 'calm, cool, and collected' and planning on the next step of the process.
116. Bigots in Utah just can&#&hellip | December 24, 2013 at 7:00 pm
[…] the tenth circuit appellate court has denied a stay on appeal. I wonder when we’re going to hear the next temper tantrum from Brian […]
117.
Cat | December 24, 2013 at 10:40 pm
Thinking of the newlyweds in Utah, spending their first holidays together as a married couple. Makes me fill with joy! Happy holidays everybody!
118.
Gregory in SLC | December 25, 2013 at 5:54 am
Indeed! Hallelujah!~
119.
Dr. Z | December 25, 2013 at 6:25 am
Miraculous. This case signals endgame for legally sanctioned homophobia in the US. If it can happen in Utah it can happen anywhere in the country. What a wonderful Christmas present for everyone, and especially all the happy couples in Utah! Happy Holidays to everyone at EoT.
120.
Chuck in PA | December 25, 2013 at 6:37 am
Yes, they have gotten the perfect gift to ensure a Happy New Year. Holiday best wishes to every set of newlyweds in Utah!
121.
weshlovrcm | December 25, 2013 at 2:11 am
I've just read all the answers to this point and I must be dense, because I still don't see the answer to this question: They appeal to Sotomayor, she denies it. They appeal to Thomas or Scalia and he grants it. At that point, with Scalia or Thomas granting a stay, does that mean that the marriages are stopped in Utah? Or does that mean that OUR side then asks another Judge? It seems that if they can just go from Sotomayor and ask an anti-gay Judge for a stay and he grants it, that's it. Can someone help me understand this? Thank you!
122.
Ali in Maryland | December 25, 2013 at 4:51 am
They can technically go from justice to justice until they can get their way. However, the justices are not stupid. If Sotomayor denies their plea for a stay and they go to another justice, at that point the most likely scenario is that the entire court will decide the stay. My personal guess is that they don't want to get involved. I see no chance of getting a stay from SCOTUS. In order to get a stay from SCOTUS, Utah must prove that 10th Circuit's denial was unreasonable and clearly wrong. How the case was decided at the circuit court has no weight.
123.
Lymis | December 25, 2013 at 8:02 am
They also have to get an implicit agreement from SCOTUS that marriage is not a fundamental right, or that same-sex marriage is not the same kind of marriage that is a fundamental right, or that gay people are not citizens under the protection of the 14th amendment.
Clear constitutional precedent is that no state suffers any legitimate harm by not being allowed to enforce an unconstitutional law. They never should have passed it in the first place, so they can't be harmed by not being allowed to enforce it.
Given Loving, Lawrence and Windsor, those implicit agreements are pretty darn unlikely. They may be willing to hear the case, but they're unlikely to agree in advance that there's a serious chance they'll rule that way. I honestly don't see a stay.
About any gay rights issue other than marriage or some other federally recognized fundamental right, maybe. On a fundamental right, unlikely.
124.
SoCal_Dave | December 25, 2013 at 9:11 am
I've been having the same trouble following. Ali, when you say "they can go from justice to justice" does that mean BOTH sides can keep going? Or just their side til "they get their way"?
I know you're saying it's unlikely that they will allow 9 individual reviews, but it's still not clear to me who "they" are who technically can go from justice to justice. Sorry, Weshlovrcm I'm going to claim the "most dense" prize for myself. lol.
125.
bythesea | December 25, 2013 at 9:37 am
"They" = the defendants (Gov., AG, and their team).
126.
bythesea | December 25, 2013 at 9:44 am
To be more clear, they = the losing side. Had a stay been granted by the Tenth, then the plaintiffs would be the "they" appealing to Sotomayor etc.
127.
Ali in Maryland | December 25, 2013 at 10:14 am
Yes, it is my understanding that both sides can petition individual justices after the assigned justice for the circuit. Utah's panicked and overly optimistic behavior so far suggests that when Sotomayor denies their petition, Utah will try again with either a conservative justice or the full court. They don't seem to grasp the likelihood (next to zero) of getting a stay from SCOTUS.
128.
SoCal_Dave | December 25, 2013 at 10:36 am
Thanks, Ali and all who replied.
129.
Bruno71 | December 25, 2013 at 9:36 am
My interpretation based a bit on guesswork is that if they renew their request with a second justice, it'd be bad form to overrule the initial decision without bringing it to the full bench. If the second justice responds with the same decision as the first, there may be no need to go to the full bench. Repeat process to the applicant's satisfaction.
130.
sfbob | December 25, 2013 at 10:09 am
If they're denied a stay from the first justice they could continue to ask until they've asked a majority but in practice after one or two it gets referred to the full court. Once a stay is granted it can be appealed but only to the full court and such appeals are almost never successful.
131.
Chad | December 25, 2013 at 4:39 pm
i have never heard of a case where a Supreme Court Justice rules on a stay request (or any other request) and then another individual justice is petitioned, let alone reverse the first Justice. this simply does NOT happen. can anyone cite a case where this has happened?? because i don't think it has ever, or will ever, happen.
132.
Bruno71 | December 25, 2013 at 7:54 pm
As mentioned earlier in this thread, Orly Taitz went to multiple justices seeking a different outcome in her $20,000 penalty case. As far as a reversal, I'm quite in the dark…there have been few mentions of other such instances, but we do know it is possible according to the rules.
133.
Ben in San Diego | December 25, 2013 at 8:11 am
On a related note: state taxes. The Utah State Tax Commission must be going bonkers as they are probably scrambling on how to allow Utah same-sex married couples to file as married on their state tax forms. Or if, at this point, they should even bother at all with all the appeals that will be happening. Glancing at Utah's tax website (http://incometax.utah.gov/), the above-the-fold instructions still say that married same-sex couples cannot file as married for Utah state tax. Of course, the decision is less than a week old, and I'm sure that no one in the tax commission ever thought of marriage equality coming to their state.
134.
Ali in Maryland | December 25, 2013 at 10:26 am
Here is the added bonus for Utah's continuous efforts for a stay. SCOTUS will deny their request for a stay. And in the future, when another federal district judge rules a state ban on gay marriage unconstitutional, the chance of that judge or the circuit court above him/her putting a stay on the decision will be much less likely. In a way, SCOTUS will have provided guidance to every federal court by implicitly saying, "Don't bring these stay requests to us. We'll deny them".
135.
Sagesse | December 25, 2013 at 10:38 am
A prediction:
Eighteen states and DC allow LGBT couples to marry.
And there's been no harm.
Married (and unmarried) LGBT couples in eighteen states and DC are raising children.
And there has been no harm.
LGBT couples in other states are raising children.
And there has been no harm.
Since DOMA was overturned, LGBT couples in the other states have been travelling to marriage equality states to be married and to take advantage of federal marriage benefits in 2013, then returning home.
And there has been no harm.
The courts can see this. If a stay is denied in Utah, there will be no further stays in any state.
Congratulations to all the newly married couples in Utah, and compliments of the season everyone!
136.
Jim | December 25, 2013 at 7:10 pm
Forgive my ignorance here: My understanding was that they're seeking a stay from Justice Sotomayor because she oversees the 10th circuit. What permits them (if anything does) to seek a stay from a more sympathetic Supreme?
137.
Bruno71 | December 25, 2013 at 7:51 pm
It's just the rules. They're allowed to "renew" their application to a different justice after the overseeing justice decides on it. I don't know what the logic is behind it.
138.
StraightDave | December 25, 2013 at 8:14 pm
Probably to avoid being screwed over by a biased justice. Although in this case it's more likely done to seek out a biased justice. If that's the historical reasoning, then I think en-banc should be the only other option, to avoid playing games. I know it's not, but it should be.
139.
Brent W. | December 25, 2013 at 8:57 pm
Technically, there is nothing that prevents them, but they must go to Sotomayor first. I think it's very likely she refers this to the whole Court, and that would be the end of it Practically speaking, if she did take it herself and deny the stay, if they go to another Justice, and he is inclined to grant (say, Alito), he is going to know that Sotomayor said no, and 100% he will just refer it to the whole Court, because he knows that there is disagreement. If he even tried to do an end around, the plaintiffs can just petition the whole Court and get a definitive ruling. Practically speaking, even the conservative Justices wouldn't try to play games — they all get along, and they're pretty congenial. No games will be played – just CHILL. Says here that Sotomayor will just refer it to the Whole Court just to get the definitive ruling.
140.
Colleen | December 25, 2013 at 9:11 pm
Is there a time frame? I read somewhere that the 10th circuit court was obliged to grant or deny stay within 48 hours of application, though I have no idea if that was accurate. Does Sotomayor have any deadline?
141.
Brent W. | December 25, 2013 at 9:28 pm
Not that I'm aware of . The Justices do whatever they want, whenever they want, however they want. 🙂
142.
Bill | December 25, 2013 at 8:50 pm
So, Sotomayor denies a Stay this time. En banc the court agrees with her. Next time, in whichever District is overseen by Thomas or Scalito there is another such request for a stay- and Thomas or Scalito grants it because they're pricks. So how is there SCOTUS precedent set if they deny a stay en banc right now. Sorry- I'm ignorant but very interested.
143.
Brent W. | December 25, 2013 at 9:00 pm
If there is a majority that disagrees with Scalito, you can easily get around it by petitioning the whole Court. but as I said previously, the Justices are pretty congenial – they really are. They get along, they don't play any 'games' If Scalito is inclined to grant the stay, but he's aware that a majority of the Court likely disagrees with him, says here that he would DEFINITELY refer it to the whole Court. he's a nice enough guy — and they all have to work together. AND, most importantly, he does not want to be reversed by his colleagues, one day later. Believe you me.
144.
Mike in Baltimore | December 27, 2013 at 4:58 am
Interestingly, two of the Justices Oily Taint went to for her request for a stay were first to Thomas (as he is the Justice for the 3rd District where her case originated), then Scalia, both of whom denied stays.
Thomas/Scalia/Alito all may be 'pricks', but you can't necessarily call them unintelligent 'pricks'.
145.
grod | December 26, 2013 at 8:02 am
Second most populous Utah County began issuing same-sex marriage licenses Dec 26. That brings all but Box into the fold
146.
grod | December 26, 2013 at 8:14 am
Correction: Only Piute County still not issuing same-sex marriage licenses. Box and San Juan joined Utah counties this am in doing so. Could the 'harmlessness' of the status quo be any more clear. ( http://www.ksl.com/?nid=148&sid=28143578#DX9j… ).
147.
grod | December 26, 2013 at 8:55 am
Piute County Commissioner Darin Bushman tweeted to FOX 13′s Ben Winslow that their clerk is on vacation and no couple — gay or straight — was getting a marriage license. The county typically only issues three marriage licenses per year he said. “It works something like this, if you want something from the clerk, you wait until she’s in the office,” he tweeted. Bushman didn't say that a marriage license would not be issues to a same sex couple. http://fox13now.com/2013/12/24/some-utah-counties…
148.
Karl Stock | December 26, 2013 at 10:55 am
Based on my read of rule 22 for the Supreme Court governing this question, my understanding is that 1). The stay request goes to Sotomayor. If she denies it, then they can submit a renewed request to another justice (let's say Scalito or Thomas). However, that second justice can't rule on it, they can only refer it to the whole court for consideration. If they do, that sets up a 5-4/4-5 split decision, with the question being whether Kennedy votes for or against a stay. I think that the chances of Utah receiving a stay are very slim, for reasons others have cited, as well as some of my own: First off, the conservative states of the 10th Circuit will likely advise against Utah snubbing Sotomayor with a renewed stay request after she denies it. And secondly, even if Utah charges forward and does so, it is less likely that Anthony Kennedy will join the 4 conservative judges in granting a stay. If forced to do so, I think, based on his past majority opinions, that Kennedy would reluctantly rule to strike down the marriage bans, citing the 14th amendment. However, he is keen to avoid having to write such a decision – just yet. That's what last summer's rejection of the Prop 8 case on technical grounds was all about.
149.
Mike in Baltimore | December 26, 2013 at 11:23 am
Except with the Prop H8 case, cert had been granted. In this case, cert can ONLY be asked AFTER a decision by the full Appeals Court has been handed down.
This request is for a stay, and the only decision to be made is 'Granted' or 'Not granted' – NO decision need be written.
As for the process of an appeal, after Sotomayor (presumably) does not grant the stay, either party in the case can ask any of the other Justices to grant the stay, OR the Justice can ask the entire court to make a decision. There is no 'automatic' referral to the entire court at any time, only that after five Justices have decided in the same manner, there is no need to continue on.
And if the 2nd Justice must go to the full court to make a decision, why did Oily Taintz get rejections from 3 Justices, then she went to a 4th Justice, before the full court told her no?
150.
weshlovrcm | December 26, 2013 at 10:09 pm
I continue to be confused, because it seems that each answer is different. Mike, looking at your answer, IF Sotomayor grants a stay and the defendants decide to ask the next Justice, and that justice rules for the stay, what happens? This is the point where I keep getting confused: Justice 1 – No, Justice 2- Yes. Then what? Do marriages stop, end of story, or does the pro-equality side then appeal the stay to a third justice? Thanks so much!
151.
sfbob | December 26, 2013 at 10:40 pm
The guidelines are here (if you want to read them): http://www.supremecourt.gov/publicinfo/reportersg…
From pages 4 and 5 of the above:
"If a Circuit Court Justice [would be Sotomayor for the Tenth Circuit], acting alone, grants an application [for a stay], the other side may file a motion to the full court to vacate that Justice's stay. As a practical matter these are rarely, if ever, granted."
Once a Circuit Court Justice grants a stay, Justice-shopping ends. The opposing side does NOT get to go from Justice to Justice seeking a different ruling. Only the full court can take action to reverse the stay. The side that asks for the stay has a good deal more control of the situation, though of course it's entirely up to the Justices, either the singly or together, what actions they take. The Supreme Court Justices wield an enormous amount of power.
One thing is not entirely clear from reading the above is what happens if the Circuit Court Justice is not acting alone…well, presumably if the Justice is not acting alone then the entire court would be granting or denying the stay in which case there'd be no further place to go for an appeal. On the other hand, if some Justice OTHER THAN the Circuit Court Justice grants a stay, how do things differ? Or is that second (or third) Justice simply construed as the Circuit Court Justice for the purposes of the process? It is implicitly assumed that things won't go very far, I suspect because it is further assumed that the Justices are likely to view the likelihood of success more or less the same so there isn't really that much hope once a request is turned down. Obviously it does happen since the rules account for the possibility. I seriously don't know the history of such attempts other than that Orly Taitz asked three different justices for a stay, all with equal success. At that point I suspect she was either politely told to take a hike or was threatened with sanctions if she persisted.
I would strongly suspect that once a Circuit Court Justice has turned down a request for a stay, the other Justices are informed. As noted in various places here, the concept of collegiality comes into play. As much as they might differ in their views, they aren't all that likely to second-guess one another for the simple reason that they have to work together pretty closely.