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As couples wed–and are kept from doing so–Utah marriage equality case heads to Supreme Court

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Although the 10th Circuit Court of Appeals has refused to stay a district court decision requiring Utah to allow same-sex couples to marry, some county clerks are refusing to follow that decision, which could lead to litigation forcing them to heed the judge’s order.  From the AP:

The Utah attorney general’s office has warned counties they could be held in contempt of federal court if they refuse to issue the licenses.

At the same time, state lawyers have asked a federal appeals court to halt the judge’s ruling and stop any more same-sex marriages.

Among those refusing to grant marriage licenses to gay couples is Utah County Clerk Bryan Thompson, who said he was waiting for the Denver-based 10th Circuit Court of Appeals to rule on Utah’s motion for a stay before deciding his next move. The court is considering arguments and could rule at any time.

A lesbian couple filed a lawsuit Monday against Utah County because of its refusal, but Thompson said he was remaining steadfast against giving up any licenses to any same-sex couples.

“Until I receive further information, the Utah County Clerk’s Office will not be making any policy changes in regards to which we issue marriage licenses,” Thompson said Tuesday.

According to the AP, the U.S. Attorney’s Office does not plan to prosecute individual clerks; instead, it will be up to same-sex couples to seek contempt findings from the courts that force clerks to heed the district court ruling.

In the meantime, while the state of Utah is doing everything it can to obtain a higher court ruling either reversing or halting the district court’s decision, state officials are moving ahead to address one rather undeniable fact on the ground–until a court says otherwise, Utah is now a marriage equality state:

Gov. Gary Herbert’s office sent a letter to state agencies Tuesday afternoon advising them to comply with the judge’s ruling or consult the Utah attorney general’s office if the ruling conflicts with other laws or rules.

The Utah Department of Workforce Services, which administers programs such as food stamps and welfare, is recognizing the marriages of gay couples when they apply for benefits, spokesman Nic Dunn told The Associated Press on Tuesday.

It’s unclear whether Utah will allow married same-sex couples to jointly file their state income tax returns next year, as they will be able to do for federal returns.

Charlie Roberts, a spokesman for the Utah State Tax Commission, said the agency still needs to consult the Utah attorney general’s office about the issue.

The state defendants in the Utah case are expected to ask U.S. Supreme Court Justice Sonia Sotomayor, who handles requests for the Tenth Circuit, for a stay order at some point today.  She could rule on the request herself or refer it to the full Court.  We’ll have updates as that unfolds.

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  • 1. DavidAZ  |  December 26, 2013 at 8:18 am

    Fox13News out of Salt Lake City is reporting that, effective immediately, the Utah county clerk is now issuing marriagee licenses to same sex couples. No word yet on the other 3 holdout counties but with this news I’d be surprised if they don’t fold very quickly.

  • 2. bythesea  |  December 26, 2013 at 8:36 am

    Twitter posts suggests all are complying but the tiny Piute (pop. ~1500) county that isn't denying, but the clerk is unrelatedly on vacation.

  • 3. grod  |  December 26, 2013 at 9:55 am

    Jacob: With Puite [last holdout), a county with 3 marriages a year, and with its Commissioner not denying that their clerk would issue a license to a same-sex couple, you headline is misleading. I raise this because 1) the status quo is in place throughout the state, 2) there apparently is no chaos or confusion anywhere, 3) "Governor was told on Dec 24 that agencies were have no difficulty adapting to the change". Why contribute to the state's hype, when it is going to appeal the denial of a stay by the 10th circuit appeal counts to asserting chaos and confusion? Please consider rewording it.

  • 4. Biff  |  December 26, 2013 at 10:00 am

    I think he wrote this before the last holdout counties started issuing licenses (article linked to is from 12/24). Time for another post showing the updates in this changing story.

  • 5. Richard Weatherwax  |  December 26, 2013 at 8:31 am

    Couldn't the full Supreme Court merely refuse to rule on the stay, thus leaving it in place without tipping their hand?

  • 6. Bruno71  |  December 26, 2013 at 9:51 am

    Sotomayor has to address the issue, but it need not go to the full bench.

  • 7. Richard Weatherwax  |  December 26, 2013 at 11:10 am

    You miss my point. It's true that Sotomayor has to consider it first, but rather than ruling on it herself, she can take it to the full court. My question is whether the full court can refuse to rule on the stay, thus leaving the stay in place, yet not tipping the court's hand.

  • 8. Bruno71  |  December 26, 2013 at 11:25 am

    I didn't miss your point, you didn't explain your question fully. I don't know the answer to your actual question, but as a side note, I don't think Sotomayor is going to refer this one to the full bench. If she denies the stay and the Utah AG and governor go to another justice, then it'll possibly be referred to the full bench if that second justice disagrees with Sotomayor.

  • 9. JamesInCA  |  December 26, 2013 at 3:10 pm

    My first thought is that the full court can do whatever it wants, because they're Supreme, after all.

    My second thought is that they could simply unanimously deny the stay, which doesn't tip their hand. All it says is that they decline to second-guess the judgment of the courts below them on the limited issue of the stay, which doesn't really have a lot of predictive value — particularly if it were unanimous. So if I were a conservative justice, and I were to see the court leaning in that direction, I'd vote to deny the stay, rather than give the pro-SSM litigants a justice-by-justice roadmap to a decision.

  • 10. JamesInCA  |  December 26, 2013 at 3:14 pm

    Let me put it differently, after examining this question over the last few days.

    Presuming that Sotomayor denies the stay, I don't see a pathway that leads to a stay occurring that *doesn't* depend on the presumed intemperance of Scalia, Thomas, or perhaps Alito. And while they're conservative, and Scalia is certainly bombastic at times, I think their intemperance is *wildly* overrated on the left.

  • 11. Bruno71  |  December 26, 2013 at 3:18 pm

    Thomas is the most virulently activist of the three. He was the lone dissenter in the Referendum 71 case, where Scalia even wrote the majority opinion. If anyone would usurp the decorum of the court, it'd be him.

  • 12. KarlS  |  December 26, 2013 at 6:10 pm

    He's been usurping it for years, hard to imagine him changing his spots.

  • 13. Zack12  |  December 26, 2013 at 8:37 pm

    Bottom line,I understand being conservative but Thomas fails to realize that if not for the courts,he will still be scrubbing floors in a law office because of his skin color and would NOT have been allowed to be in the marriage he's in right now without the court weighing in.
    Really is a shame Thurgood Marshall couldn't hang on longer,the country would have been a better place for it.

  • 14. Kevin  |  December 26, 2013 at 7:38 pm

    Wildly overrated? No. The true depth of their contempt for the New Deal, Social Security, Medicare/Medicaid, the Voting Rights Act, etc. will take years to surface since the jurisprudential kernels they write take years to fluoresce into action on the ground level that affects people directly.

  • 15. Rose  |  December 26, 2013 at 3:31 pm

    There is NO stay at this time!!!

  • 16. Guest  |  December 26, 2013 at 7:35 pm

    there is no stay to leave in place

  • 17. Mahnahvu  |  December 26, 2013 at 8:48 am

    Was there any significance to Judge Shelby's observation that the status quo has changed? Does the fact that there have now been many hundreds of same-sex couples married in Utah make a difference when it comes to ruling on a stay?

  • 18. StraightDave  |  December 26, 2013 at 9:08 am

    Probably not legally, but it certainly makes any claims of harm laughable.

  • 19. Dr. Z  |  December 26, 2013 at 9:26 am

    Which raises a question for me on a different set of cases bearing on same-sex divorce. What irreparable harm is the Texas AG claiming the state would incur in the event that it starts processing same-sex divorce cases?

  • 20. StraightDave  |  December 26, 2013 at 12:43 pm

    Damaging their reputation by being exposed as 1st class A-holes and frauds.
    Oh wait, they already did that? Never mind. I guess no more harm to their reputation is possible, then.

  • 21. JamesInCA  |  December 26, 2013 at 3:17 pm

    Isn't it his position that those marriages simply don't exist in Texas? Why should the state adjudicate marriages that, in his universe, don't exist?

    "Irreparable harm" is one of the criteria for a stay of judgment, but I don't think it really enters his calculus on divorces.

  • 22. Dr. Z  |  December 26, 2013 at 4:33 pm

    The question will be: why is Texas stirring up all this sh*t when there's no harm to letting the couples proceed normally with a divorce? If the AG can't satisfactorily answer that obvious question by showing harm to Texas, the court is going to rule against him. Harm from permitting marriage is one thing; harm from permitting divorce is quite another.

  • 23. StraightDave  |  December 26, 2013 at 8:45 pm

    1) Especially when TX claims the guys shouldn't be married in the first place. You'd think divorce would be their preference. That's where the irrationality is likely to bite them in the ass.

    2) Especially when TX allows hetero divorces that break up all those lovely Mom & Pop families, while they object to divorces for the non-procreating gay couples whose non-existent kids couldn't possibly be harmed.

    Well…. because it's Texas. Any other questions?

  • 24. Richard Weatherwax  |  December 26, 2013 at 9:46 am

    Before Judge Shelby issued his decision he held a phone conference with the attorneys on both sides. He then asked the state attorneys what they intended to do. They answered, "We don't know." That was a mistake. If the state had asked for a stay at that time, it almost certainly would have been granted. A stay would have allowed the state to continue business as usual, thus maintaining the status quo, and avoid the confusion which would occur if the decision was reversed. By failing to request a stay at the proper time, marriage equality became the status que, and to issue a stay at this time would cause even more confusion.

  • 25. Karl Stock  |  December 26, 2013 at 11:33 am

    It DOES appear that the state AG's office was caught rather off guard by the possibility of this decision. Seems odd they wouldn't have had a response ready and waiting for what should have been seen as a potential outcome. I imagine there's some pretty fierce finger-pointing and blame-laying going on in and among the Governor's Office and the AG. (Oh, and the Church Office Building – can't forget that important branch of the Utah government…)

  • 26. Dr. Z  |  December 26, 2013 at 12:08 pm

    Just guessing, but Tarbet may have been assuming that Swallow had already prepared a stay request then was surprised to learn that he hasn't. Swallow appears to have been resisting pressure to resign until after Dec 1st so that he could feather his own nest with a vested state pension and healthcare. Swallow had lots of other things to worry about and probably had Short-timer's Syndrome where this case was concerned. Also, Shelby announced his decision much sooner than anyone was expecting.

    "Outside counsel" is probably code language for BYU Law School faculty or the AGs of other sympathetic 10th Circuit states like OK/KS/WY.

  • 27. Steve  |  December 26, 2013 at 2:36 pm

    Or ambulance chasers like the Alliance Defense Fund or the Thomas More Society.

  • 28. Kevin  |  December 26, 2013 at 7:41 pm

    Where is this information coming from?

  • 29. jpmassar  |  December 26, 2013 at 9:23 am


    A spokesman for the Utah Attorney General’s Office told FOX 13 the office is not expected to file an emergency request with the U.S. Supreme Court to halt same-sex marriage licenses from being issued “for a few days.”

  • 30. jpmassar  |  December 26, 2013 at 9:25 am

    As of Thursday morning, all of Utah’s 29 counties were issuing marriage licenses to same-sex couples — with the exception of tiny Piute County, which was issuing no licenses to any couple, gay or straight.

    The county clerk is on vacation, commissioners said.

  • 31. sfbob  |  December 26, 2013 at 9:53 am

    If the stay request can be delayed for "a few days" what sort of "emergency" actually exists? It's tough to come to any sort of conclusions other than that either the state knows it's licked or that its counsel is grossly incompetent.

  • 32. Karl Stock  |  December 26, 2013 at 11:34 am

    Both conclusions are quite obviously true

  • 33. bythesea  |  December 26, 2013 at 9:58 am

    I imagine bigots outside the 10th are anxious that ME is at least limited to the 10th Circuit as long as possible, perhaps the Governor has been hearing from them.

  • 34. Zack12  |  December 26, 2013 at 10:16 am

    I think the governor has been hearing from the bigots in KS and OK who know that if the 10th agrees with Judge Shelby's ruling and the Supreme Court refuses to hear it,that not only would Utah have same sex marriage but so would their states.
    And if you know the history of Brownback and Fallin,that would be more then they could bear.

  • 35. Colleen  |  December 26, 2013 at 10:26 am

    How would Herbert limit the case to Utah? Is there a way other than throwing in the towel and withdrawing the appeal?

  • 36. sfbob  |  December 26, 2013 at 10:36 am

    I don't think there's any other way.

  • 37. Bruno71  |  December 26, 2013 at 10:40 am

    That's the only way Herbert could control it. I doubt the 10th Circuit could come up with anything that in a principled way limited the scope to Utah either, but that would nonetheless be out of Herbert's control.

  • 38. Karl Stock  |  December 26, 2013 at 11:39 am

    Agree with you all. The way the 9th Circuit limited it was by the (rather byzantine) rationale that California had granted, and then taken away the right to marriage equality, and that therein lay the evidence of animus. That can't be applied here. If Herbert appeals to the 10th Circuit, and SCOTUS refuses to take it, it will either be legal in none of the 10th circuit states, including Utah, or in all of them. He's taking a pretty big gamble on where he thinks the 10th circuit will come down. And he's got to be aware that he's not being advised by the most competent of attorneys thus far. That's where the reference to "outside counsel" comes from, in my opinion.

  • 39. Bruno71  |  December 26, 2013 at 11:46 am

    The 9th Circuit knew that not only Kennedy but all the liberal justices seemed to want to go slow on this issue (likely tipped off by Ginsburg's "percolation" theory comments, but also Kennedy's tendency to try to rule as narrowly as possible). They did the right thing by offering them up a narrow ruling. In fact, if it were up to Kennedy, he tipped his hand in the prop 8 hearing that he'd have voted to deny cert, even though he thought the rationale to be "odd." He'd have much preferred that off-ramp to the one taken on the standing issue.

  • 40. Zack12  |  December 26, 2013 at 1:05 pm

    I think Kennedy is like GInsburg in that they want marriage equality but don't want to do a huge sweeping ruling unless forced to either.

  • 41. Dr. Z  |  December 26, 2013 at 2:15 pm

    Why should SCOTUS take the flak over legalizing SSM nationwide when they can signal to the circuit courts to do it a handful of states at a time?

  • 42. bythesea  |  December 26, 2013 at 3:42 pm

    IIRC the equivalent of that is how nationwide ME actually came to Canada.

  • 43. Colleen  |  December 26, 2013 at 1:04 pm

    Wow. Thanks for the replies.

    I keep wondering if the NOM-type people are pressuring Herbert to give up in a desperate attempt not to let even more toothpaste get squeezed out of the tube. That would be disappointing in terms of the rest of the 10th getting roped into a ruling for our side, but delicious for Utah, and Shelby's decision would provide some big, fat precedent down the line, yeah?

  • 44. Bruno71  |  December 26, 2013 at 1:09 pm

    It doesn't really set precedent per se outside of Utah, but certainly other courts can look at his ruling for guidance, and like Walker's ruling, it should have some major influence.

  • 45. Colleen  |  December 26, 2013 at 1:15 pm

    Thanks for the clarification. My scholarship on legal terminology is limited to high school Civics class 25 years ago! 🙂

  • 46. Bruno71  |  December 26, 2013 at 1:18 pm

    LOL. If I'd taken a Civics class back then, I'd have forgotten everything. Equality on Trial is a great civics class.

  • 47. Dr. Z  |  December 26, 2013 at 1:40 pm

    Yes, there have already been citations to Shelby's ruling (e.g. the Ohio ruling.)

  • 48. grod  |  December 26, 2013 at 6:43 pm

    pg 3 Obergefell v. Kasich

  • 49. grod  |  December 26, 2013 at 7:08 pm

    and more so Footnote 9: Section2 DOMA: this Court states affirmatively that Section 2 of DOMA does not provide a legitimate basis for otherwise constitutionally invalid state laws, like Ohio’s marriage recognition bans, no matter what the level of scrutiny. Although Section 2 of DOMA is not specifically before this Court, the implications of today’s ruling speak for themselves. See also Kitchen v. Herbert
    , 2:13-CV-00217 (D. Utah Dec. 20, 2013).

  • 50. grod  |  December 26, 2013 at 7:11 pm

    pg 18

  • 51. Dr. Z  |  December 26, 2013 at 11:23 am

    Since we're speculating here (and why not?) here's my guess at what's happening behind the scenes.

    The break of the past couple of days has given their side a chance to take stock of their situation, and it's not pretty. The architect of their legal strategy, former AG Swallow, is facing possible prison time and the AG's office is under a cloud for corruption. The acting AG Tarbet really screwed the pooch and submitted a woefully inadequate and poorly written stay request to Shelby and the 10th Circuit that our attorneys promply evicerated. The first act of the new AG Reyes was to fire everyone in the office of the AG and make them reapply for their jobs.

    So with the Utah AG office in a shambles and with the only remaining chance for a stay at SCOTUS, Reyes probably figured his side needed a timeout to pull together a better stay request. Yes, Herbert has almost certainly been on the phone with Fallin and Brownback, but rather than throwing in the towel the theme has probably been, how can the AGs of Oklahoma and Kansas help out the Utah AG. I don't think OK/KS can submit an amicus briefing on a stay request (or at least I've never heard of anybody doing that) but I'm guessing that the OK/KS AGs will be helping do background research/writing to back up the Utah AG. Hence the delay in getting the stay request to SCOTUS. It may be that Reyes figured there was a tradeoff to make: submit a crappy but timely stay request, or risk a delay to pull together a better stay request. He's probably figuring the stay is a longshot anyway at this point, so a few extra days would be their last best chance at forestalling this.

  • 52. SoCal_Dave  |  December 26, 2013 at 12:48 pm

    Interesting ideas, Dr.Z. I'm wondering, though, how much better the request can be in a few days. Unless maybe they will have completed a study showing how responsible procreation has dropped off sharply since Friday. LOL

  • 53. sfbob  |  December 26, 2013 at 1:29 pm

    Or a study showing that a whole bunch of heterosexual couples got divorced and each member of each divorced couple married their same-sex BFF.

  • 54. Bruno71  |  December 26, 2013 at 2:18 pm

    When in doubt, Regnerus, Regnerus, Regnerus!

  • 55. Dr. Z  |  December 26, 2013 at 2:56 pm

    There was an interesting footnote in the Ohio case. The judge allowed the Ohio initiative sponsor (Coalition for Traditional Values) to submit an amicus brief on the case. The CTV, citing Regnerus, said that SS couples were not as good at raising children as OS couples. The judge found this pretty offensive, considering the case was about funeral homes listing the correct marital status for the deceased.

  • 56. SoCal_Dave  |  December 26, 2013 at 3:02 pm

    OMG, you're kidding, right??

  • 57. Dr. Z  |  December 26, 2013 at 4:20 pm

    See footnote 4 on page 7. It's in the middle of a passage where he writes about the animus they exhibited in passing the DOMA amendment in 2004.

  • 58. sfbob  |  December 26, 2013 at 6:46 pm

    When I read that footnote I just bust out laughing. It's pretty bad when a judge reads you right in his (or her) decision.

  • 59. grod  |  December 27, 2013 at 8:05 am

    Dr. Z In my opinion,the application of OBERGEFELL vs. WYMYSLO’s finding of recognition of out-of-state marriages to death certificates has wider and immediate import. Black states that "Section 2 of DOMA does not provide a legitimate basis for an otherwise constitutionally invalid state law.” Black asserts that a right to marry {as aspect of liberty rights} is a fundamental right belonging to individuals. An aspect of this right is a right to Remain Married, and to have one’s marriage recognized. "Ohio law is absolutely clear, it recognizes marriage from the state where it is celebrated". No other state has a right not to recognize the valid marriages of another state without due process of the law. “The lack of equal protection of the law [here] is fatal." In eighteen states, marriage is orientation- inclusive. By Black’s decision, and given that Ohio has not sought a stay while under appeal, and no stay was declared in the decision, are not all Ohioans married elsewhere able to now claim federal and state benefits that goes with the right to remain married? And would not a successful appeal of this right to remain married also apply in Kentucky, Michigan and Tennessee? Indeed throughout the USA? Black said the Supreme Court has consistently adhered to a fundamental right, once recognized belongs to everyone.

    Black also said a fundamental rights may not be submitted to vote, they depend on the outcome of no election. Neither can the electorate order a violation of the Due Process or Equal Protection Clauses of the Constitution. Ohio ban is also an affront to same sex couple’s First Amendment's Association rights, requiring prompt remedy. Black undid a part of the 2004 amendment to the Constitution achieved my referendum. If a part of the 2004 referendum question/amendment is invalid, is the whole question invalid?

  • 60. StraightDave  |  December 27, 2013 at 10:07 am

    I agree this is a big deal! There's no possible way for voters to immunize an unconstitutional law. Wasn't that why Prop 8 died?
    Congress tried to use DOMA-2 to give the states a green light to be mean, which many promptly did. OH was toast anyway because their strong public policy was to recognize all out-of-state marriages, which takes the FF&C exception off the table. And now DOMA can't save them.

    I never thought DOMA-2 carried much additional weight legally, but was a psychological bludgeon. I think Judge Black (and grod) are on to something here. If the Federal gov't can no longer ignore a valid state marriage, how is it the other states can get away with ignoring it? Same reasoning should apply. All non-recognition laws are now on thin ice. Windsor plus Obergefell should wipe them all out, probably before full marriage equality is nationwide.

  • 61. Bruno71  |  December 27, 2013 at 10:19 am

    A pure federalist would say that the US government has to defer to the states on the issue of marriage, while each state can have its own unique set of laws and isn't compelled to recognize out of state marriages (at least from a US Constitution based reading on the matter). The DOMA-3 ruling was not simply a federalist one, though, and the 14th Amendment will eventually come into play. So the question of recognizing out of state marriages is still a bit hazy in terms of current precedent I'd say.

  • 62. grod  |  December 27, 2013 at 1:17 pm

    Brun71 The Right to Remain Married is a well accepted aspect of the fundamental right to marry. Its a brilliant insight. Black makes it his #1 finding. pg 48. It undermines the text of the 2004 referendum question and thereafter the constitutional amendment. At least 21 other state referendums and amendments use the language valid and/or recognized. I suggesting that everyone of these constructions will be dismissed shortly under Blacks construction of the USA constitution. And still not stay in Ohio. LGBT Ohioans who hold out of state marriage licenses assert you right to remain married. NOW. Do so before the state awakes to the need for a stay! Utahans did so to lasting effect.

  • 63. Bruno71  |  December 27, 2013 at 1:25 pm

    Yes, it sets great precedent…in Ohio. But it still has to be addressed at the appeals court and possibly at SCOTUS.

  • 64. Dr. Z  |  December 27, 2013 at 2:44 pm

    This is the same reasoning behind Oregon's recognition of valid out of state SSM.

  • 65. Chris M.  |  December 26, 2013 at 2:59 pm

    LOL! We get him on the stand in Michigan very soon. Called as "expert witness" by the other side. Can't wait to see the fireworks. It's an hour's drive to the courthouse for me, but I just might make for my entertainment.

  • 66. FYoung  |  December 26, 2013 at 10:07 am

    This is a promising development. I expect that the longer it takes for the application to be made and the more couples get married in the meantime, the better the odds that the stay will be refused.

  • 67. jpmassar  |  December 26, 2013 at 9:56 am

    BOISE, Idaho (AP) — Four couples challenging Idaho's gay marriage ban this week asked a federal judge to block the state from intervening in their lawsuit, arguing such a move would unnecessarily add to their workload and complicate the case.

    They filed their lawsuit in U.S. District Court in November against Gov. C.L. "Butch" Otter and Ada County Clerk Chris Rich, contending Idaho's 2006 voter-backed law banning gay marriage violates the U.S. Constitution's equal protection and due process guarantees.

    Now, the Idaho couples say allowing Idaho to intervene isn't necessary, since Otter is already an adequate representative of its interests.

    Attorney General Lawrence Wasden counters Idaho has a strong interest and right to defend its laws.

  • 68. jpmassar  |  December 26, 2013 at 9:57 am

    Today, Utah. Tomorrow, Idaho.

  • 69. Steve  |  December 26, 2013 at 2:40 pm

    The state with the second most highest Mormon population percentage-wise. 23%

  • 70. bythesea  |  December 26, 2013 at 10:05 am

    Interesting approach, but I expect the AG's counter will most likely prevail (though the couples will ultimately win).

  • 71. Bruno71  |  December 26, 2013 at 10:41 am

    Is this similar to what we saw the other day in one of the Virginia cases?

  • 72. grod  |  December 26, 2013 at 12:06 pm

    Dec 23 Va Judge M.F. Urbanski removes governor because he has no specific responsibilities in enforcing marriage laws

  • 73. StraightDave  |  December 26, 2013 at 1:03 pm

    I can just imagine the 3 stooges (oops, governors) playing blind rock-paper-scissors on the phone to decide who gets to write the SCOTUS stay motion. I actually don't think Utah is much worse off now, since BYU law students are probably the equal of former-AG Swallow's former staff.

    And it won't matter anyway. Could any of you write a persuasive stay motion with the ingredients UT has? They've got diddly squat and I suspect the whole conversation is about how to cut their losses vs dying with their boots on. Oh, to be a fly in the wall!

  • 74. Bruno71  |  December 26, 2013 at 1:13 pm

    Still, I don't see why they'd want to drag their feet on the emergency stay petition, unless they don't want to risk it ending up before the full bench and having the justices tip their hats regarding the big marriage equality ruling in the future? I can't really see how it hurts them to at least get a reasonable petition before Sotomayor ASAP and let her deny it again. Maybe it's the "reasonable" part they're struggling with most.

  • 75. sfbob  |  December 26, 2013 at 1:32 pm

    I'd go with the latter. What the heck have they got left to argue? They can't all be blinded by religious ideology, can they? (Rhetorical question of course)

  • 76. StraightDave  |  December 26, 2013 at 1:37 pm

    Oh I agree there's no value in dragging their feet. The longer this goes on, the more psychologically entrenched it becomes. But they shouldn't waste too many brain cells trying to come up with a "winning" argument – not gonna happen. Just go through the motions to keep LDS happy. They've got maybe 6 months to dither over pulling the plug on the 10th Circuit appeal if they feel that's going to screw over the other states. But I can not imagine UT going all the way thru the appeal process and then bailing out while the court is deliberating. The church would extract revenge.

    I love all the ugly possibilities. Schadenfreude, The Sequel, coming to a newscast near you. Actually, it might be episode IV by now – Chuck Cooper's smugness, Boehner's expensive DOMA escapade, NOM dissolving into thin air, ……

  • 77. Dr. Z  |  December 26, 2013 at 1:37 pm

    I believe the standard for a stay is higher at SCOTUS is also higher than at the 10th Circuit, they would have to show that Shelby had abused his discretion. Given the state's bungling that would be nigh impossible.

  • 78. mtnbill  |  December 26, 2013 at 2:02 pm

    I think they have to have better arguments as the ones they've tried have all been shot down elsewhere. I don't think the AG in UT advanced any new arguments. I think Walker's decision to hold a trial showed that the arguments against same sex marriage do not hold any credence. Even Clement's arguments before the US Supreme Court did not win.

    But since the Gov and (likely) the new AG are good members of the LDS Church, they feel they have to proceed as (literally) a matter of faith. They are not stupid, and may realize that the standards for a newer set of arguments have been raised.

  • 79. Ali in Maryland  |  December 26, 2013 at 2:36 pm

    You can't underestimate conservatives' ability to self delude. Evolution is a myth; global warming is not happening; courts will eat up baseless arguments as long as we make marriage equality sound armagendon-y and claim that opposers just want to "defend" children and marriage itself. Trust me, Utah AG and governor still believe their arguments are golden. They will continue to be surprised when courts don't agree with them.

  • 80. rocketeer500  |  December 26, 2013 at 2:16 pm

    Dr Z, I think you have it partly correct. The request for a stay is higher at the SCOTUS level, but not because of Shelby's opinion nor if he had abused his discretion. Shelby has the discretion to deny the request for a stay on his opinion, if the State, in this case, does not have a compelling argument for such stay. Shelby, in his denial, stated clearly that the argument of the state was the same argument used during trial, and that argument was found to be unsupported.

    The problem that the Utah AG has now is to convince the SCOTUS, that the 10th District Court of Appeals abused their discretion by denying the emergency stay from the trial Judge (Shelby). That is the challenge and unless the Utah AG can find something in both of the Appeal Justices' background that would cause either one to be suspect in their denial, it's going to be near impossible to convince Justice Sotomayor to issue a stay.

    I could be wrong with Justice Sotomayor, but, I know the AG will have to use something better than the tired-old arguments that were used in the past.

  • 81. Bruno71  |  December 26, 2013 at 2:22 pm

    "the Utah AG has now is to convince the SCOTUS, that the 10th District Court of Appeals abused their discretion by denying the emergency stay from the trial Judge"

    Not sure I understand this. Do you mean the emergency stay requested by the defendants? Because Shelby obviously didn't grant a stay.

  • 82. Guest  |  December 26, 2013 at 7:51 pm

    He mean's Judge Shelby's denial.

  • 83. Dr. Z  |  December 26, 2013 at 2:43 pm

    Thanks for the clarification, I heard that the SCOTUS stay request had to show abuse of discretion but I assumed it was on the part of the district judge. It makes perfect sense that it would have to pertain to the 10th Circuit denial of the stay request.

  • 84. Dr. Z  |  December 26, 2013 at 2:36 pm

    Interesting analysis on Election Law Blog about cert games at SCOTUS when the Utah case is finally appealed from the 10th Circuit.

  • 85. Bruno71  |  December 26, 2013 at 2:41 pm

    I disagree with the blog post wholeheartedly. The logic that Scalia, Thomas & Alito would want to take the case was correct in Perry, but I think they now know that doing so hastens the endgame. I think they won't touch these cases with a 10-foot pole from now on.

  • 86. sfbob  |  December 26, 2013 at 2:54 pm

    One other item to object to in the article is this:

    "It is fairly likely that the Court grants a stay to keep the status quo as things progress in the 10th Circuit."

    In fact the status quo is that same-sex couples have the right to marry. A stay would actually change the status quo, not preserve it.

    I suppose it's conceivable that hatred might push Scalia, Thomas or Alito to push for something they're going to lose on but, let's face it: despite our views of their judicial abilities the fact is that they are not completely (I did say not COMPLETELY) stupid. Their choices are to push the issue now and be rebuffed or let some other justices take responsibility by granting cert on one case or another…and still be rebuffed. The court's own record essentially guarantees that when a definitive decision on marriage equality comes it will come down in our favor.

  • 87. Anthony  |  December 26, 2013 at 3:31 pm

    Here's the thing: the conservatives justices on SCOTUS know that a reasoned legal opinion can be made for heightened scrutiny for gay people. I think that terrifies them much more because that seems to be where Kennedy will rule on next. He won't declare a right to SSM, he will simply elevate gays to heightened scrutiny since same sex attraction is an involuntary characteristic beyond our control, and all marriage bans across the country will be overturned.

  • 88. bythesea  |  December 26, 2013 at 4:04 pm

    And any SCOTUS ruling granting us heightened scrutiny will wreak havoc on various other anti-gays laws nationwide as well.

  • 89. Dr. Z  |  December 26, 2013 at 4:13 pm

    I think a number of court watchers assume SCOTUS will grant a stay simply because it's conventional wisdom, because there was a stay in Hollingsworth, and because they haven't been following the events of the past week in detail.

    But this is the same conventional wisdom that was just certain that the 10th Circuit would grant a stay, too.

  • 90. Bruno71  |  December 26, 2013 at 4:29 pm

    I was wondering if the writer of that blog entry wasn't actually aware that same-sex couples have been marrying in Utah. That's what it almost seems like.

  • 91. Dann  |  December 27, 2013 at 7:07 am

    Do you ever get the feeling that some of these journalists simply "write" to see their names/articles in print? Clearly the author of this article isn't "up to date" on what's all transpired. I get the impression he just wrote this to "write."For example he mentions the "Utah case" and the "Ohio case" as if these have been on going for extended lengths of time when in fact they have not.

  • 92. Craig Nelson  |  December 27, 2013 at 9:15 am

    In Perry/Hollingsworth they chose to not consider the case but allowed marriages to proceed as confirmed by Kennedy as one of the dissenters. If they were freaked out by marriages happening they could have found a state's rights way of ruling in Windsor and Perry. They could of but didn't, issuing the far more sinewy Windsor ruling and eviscerating standing in Perry. Had Windsor been a pure states' rights ruling it would likely have had a lot more votes – at least 6-3, possibly more (notably Roberts' dissent tries to turn it into a states' rights ruling, which it clearly isn't).

    Then there's the line about states having freedom to define marriage subject to constitutional guarantees.

    Scalia was very unhappy with Windsor, that much is clear. But he has proved a faithful exegete of the ruling.

    Shelby's ruling agrees with Scalia's dissent. It would be somewhat unusual for Scalia to rule against his own exegesis. By the way, I entirely agree with Scalia's exegesis. Scalia's attitude should be 'You see I was entirely right, he even quotes me in his ruling, what more d'you want?'. So Scalia's the wrong person to go to.

    Roberts on the other hand… more likely to refer to the whole court. Which will also deny a stay.

    There is a lot of wisdom in referring to the whole court. Utah needs to be put out of its misery and be allowed to get to work on their 10th circuit appeal. For that reason I can imagine Sotomayor might want to refer to the whole Court to just get the whole thing over (for now).

    I originally thought SCOTUS would deny cert in such cases (once appealed at circuit) and allow marriage equality to be established piecemeal. They still might, but at some point it is better to end up with a conclusive ruling. We are then, one way or another, entering an end game. The writing is truly on the wall. Judge Shelby's ruling is like an earthquake. In a way that is the problem for Utah. After an earthquake one is dazed, confused, the usual landmarks aren't there anymore, the streets are impassible and the transport system is all out of action.

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