Equality On TrialUtah files request with U.S. Supreme Court seeking stay of ruling allowing marriage equality

Utah files request with U.S. Supreme Court seeking stay of ruling allowing marriage equality

December 31, 2013

By Jacob Combs

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Utah government officials defending the state’s marriage equality ban today filed a request with the U.S. Supreme Court seeking to stay a district court judge’s ruling requiring the state to allow same-sex couples to wed.

Robert J. Shelby, the judge who issued the pro-marriage equality ruling a few weeks ago, refused to stay his decision pending appeal. The Tenth Circuit Court of Appeals later did the same, and yesterday issued an expedited briefing schedule that will conclude briefing in the case by the end of February. Utah’s last hope in its quest to stop same-sex couples from marrying–nearly a thousand couples have already done so–is with the Supreme Court. Today’s request is directed to Justice Sonia Sotomayor, who handles requests from the Tenth Circuit. She can either rule on the request herself or refer the matter to the full court.

“Applicants respectfully apply for an immediate stay pending appeal of a judgment and injunction entered by the United States District Court for the District of Utah, invalidating and enjoining enforcement of Utah’s marriage laws to the extent they limit marriage to man-woman unions,” the filing reads. “Similar requests for a stay have been denied by both the district court and the Tenth Circuit.”

Utah’s stay request argues the case “squarely presents the question that this Court expressly left open last term in United States v. Windsor“–essentially, whether states are or are not prohibited under the U.S. Constitution from banning marriage equality. A decision by the Tenth Circuit upholding Judge Shelby’s ruling, the state points out, would create a circuit split with the Eighth Circuit–which in 2006 rejected a similar Fourteenth Amendment-based challenge seeking marriage equality–making eventual consideration of the case by the Supreme Court all the more likely.

In this light, Utah writes, the marriages currently being entered into by same-sex couples in Utah in the absence of a stay are an “an affront not only to the interests of the State and its citizens in being able to define marriage through ordinary democratic channels … but also to this Court’s unique role as final arbiter of the profoundly important constitutional question that it so carefully preserved in Windsor.”

Utah argues that states have the right to limit marriage to different-sex couples if they believe that such partnerships are the optimal environment for childrearing. “[M]aintaining the traditional definition of marriage,” the brief argues, “hold[s] up and encourage[s] man-woman unions as the preferred arrangement in which to raise children,” helping the state “increase the likelihood that any given child will in fact be raised in such an arrangement.”

Judge Shelby’s injection allowing same-sex couples to wed, Utah’s lawyers argue, “imposes certain–not merely likely–irreparable harm” and “places in jeopardy the democratic right of millions of Utahns to choose for themselves what marriage will mean in their community.”

Further, Utah expresses concern that the state could face “ever-increasing administrative and financial costs to deal with the marital status of same-sex unions performed before this case is finally resolved.”

“A stay is urgently needed … to minimize the enormous disruption to the State and its citizens of potentially having to ‘unwind’ thousands more same-sex marriages should this Court ultimately conclude, as the State strongly maintains, that the district court’s judgment and injunction exceed its constitutional authority.”

Justice Sotomayor–or the full court–could issue a decision on Utah’s stay request anytime in the coming days.

You can read Utah’s full filing here.

UPDATE (5:30 p.m. Eastern): According to SCOTUSblog, Justice Sotomayor has asked for a reply to the Utah application to be filed by noon this Friday. This means there will be no action on the stay request until Friday afternoon at the earliest.

Equality news round-up: a look at state marriage... Happy New Year!

29197205 Comments2013-12-31+21%3A12%3A51Jacob+Combs

1. Paul S | December 31, 2013 at 1:26 pm

Does the Supreme Court have entirely different requirements for issuing a stay than the Circuit Courts? The brief notes entirely different requirements than I've generally seen.
2. Dr. Z | December 31, 2013 at 1:34 pm

As I understand it, the State must show that the 10th Circuit abused its discretion in denying the request. But IANAL.
3. Sagesse | December 31, 2013 at 1:35 pm

Still reading. However, you missed the punchline… that the star-studded outside legal counsel are BYU Law Inc. Check out the bios for the two attorneys named:
http://stm-law.com/professionals/monte-neil-stewa…
http://stm-law.com/professionals/craig-g-taylor

I don't know why, but I was expecting the state to avoid that trap.
4. Scott Williford | December 31, 2013 at 1:50 pm

Yeah – these guys are not the "cutting edge" that would be required to turn something around like this… I expect to hear the same tired arguments that went down in flames in Prop 8 trial.
5. etseq97 | December 31, 2013 at 2:09 pm

Good old Monte Stewart – one of the original anti-gay Mormon crusaders. He has been involved, in one way or another, with every Mormon effort to curtail gay rights going back to the original Hawaii decision in the 1990s. He hasn't been as visible recently since he can barely restrain his homophobia – the gays = pedos, etc. and I think the other side knows that level of wingnut will only hurt them now. You can tell by the tone of the brief and the constant use of phrases like "man-woman" that this was thrown together without outside counsel. Clement was much more polished than these rubes…
6. Dr. Z | December 31, 2013 at 4:03 pm

http://www.hrc.org/nomexposed/section/religious-t…

Wikipedia is saying this guy Stewart was co-chair of one of the organizations that sponsored Amendment 3.

He's also the founding president of the Marriage Law Foundation, a group with deep ties to NOM. Maggie Gallagher sits on the board.
7. Benji in San Diego | December 31, 2013 at 1:46 pm

Still reading too, but … Regnerus is cited (<sigh>) as a compelling reason why the ultimate decision will be against SSM (page 15, last line). I hope that in the Michigan case, that Regnerus finally go away.
8. Matt227 | December 31, 2013 at 2:22 pm

The Deboer trial will expose him as a liar and a tool.
9. Steve | December 31, 2013 at 3:54 pm

If the lawyers are up to it. This isn't a well financed effort and they were a bit blind sided at how big it became. Originally they only challenged the adoption ban (which should have nothing at all to do with being married).
10. ebohlman | January 1, 2014 at 1:36 pm

Yeah, I'm a bit worried that they might not file a Daubert motion.
11. Ryan K. | December 31, 2013 at 1:47 pm

As with anything marriage equality related or gay rights, this comes down to Justice Kennedy. The request clearly states (and we know as obvious) that four justices will not vote in support of marriage equality (still disappointed in the CJ on Windsor… Should have been 6-3 ruling). While we assume the four more liberal justices will deny the stay and would agree that the ban is unconstitutional, it is again all with Associate Justice Kennedy. He, and only he, determines the fate of marriage equality.
12. Stefan | December 31, 2013 at 1:55 pm

Kennedy is a strong ally remember. His vote in favor of standing to the plaintiffs in Perry is a strong indicator that he (and likely Sotomayor) were ready for a nationwide ruling.

As far as Roberts, the dissent in Windsor was largely due to whether or not anyone had standing to appeal the ruling. Remember too that he previously denied a stay of the DC marriage law when the question of a referendum was being appealed to the Supreme Court.
13. Ryan K. | December 31, 2013 at 2:03 pm

Both very valid points. I will hold out hope on the CJ then! Completely agree on Justice Kennedy, as without him, we would not have the opinions in Romer, Lawrence, and Windsor. Just his last sentence in Windsor about it binding "to those lawful marriages" scares me a bit. But taking his reasoning in Windsor, you'd hope it applies to state bans on marriage equality.
14. Anthony | December 31, 2013 at 2:25 pm

Kennedy is just waiting for the next case to apply official heightened scrutiny status. He didn't want to do so in Windsor because in his mind that would be jumping the gun. And it was an equal protection violation ruling, not a federalism ruling. It makes no sense for couples to have their marital status change as they cross the country. Which is why we will have marriage legalized everywhere soon.
15. Ryan K. | December 31, 2013 at 2:31 pm

I frankly don't know why it has taken so long to challenge Section II of DOMA. Why is that only remaining part of the statue valid? I wish that would have been crushed in Windsor as well. I hope you are right, and something reaches the Court while Justice Ginsberg is still there and the five Justice gay rights clique can rule on it!
16. Richard Weatherwax | December 31, 2013 at 3:39 pm

Even without Section II of DOMA, states would still be claiming the right to define marriage. Repeal DOMA altogether, and it would make no difference. States will still claim that right.
17. davep | December 31, 2013 at 3:49 pm

But they won't be able to continue to deny recognition of a legal same sex civil marriage from another state.
18. Steve | December 31, 2013 at 3:56 pm

They could. States aren't legally required to recognize marriages from other states. In most cases they just do.

There has been a long established legal precedent that states can ignore laws from other states that conflict with a strongly states "public policy" and that only court judgments are fully portable. It's absurd and no way to run a modern country, but it's how it is.
19. Dr. Z | December 31, 2013 at 4:38 pm

Provided they apply public policy uniformly across the board. The minute they start allowing exceptions – ANY exceptions – they can no longer claim public policy without running into equal protection problems. This was an important point in Oregon's decision to start recognizing out of state SSMs.
20. davep | December 31, 2013 at 5:22 pm

Exactly. DOMA Section 2 is currently giving states the green light to apply an exception and allow them to not recognize legal same sex marriages while recognizing all other out of state marriages that may not comply with their own state's laws (marriages of young people in states with a lower age of consent law, etc.).
21. Rose | December 31, 2013 at 9:28 pm

Not really, which is why the Full Faith and Credit Clause was written……..and again, if a State is going to recognize the marriage of Bob and Jane, who were married in Tennessee, then the State will have to show a compelling reason as to why they WON'T recognize the legal marriage of Bob and Steve or Mary and Donna, who were married in say New York.

Again, either ALL legal marriages are recognized REGARDLESS of where they were performed and registered or NO legal marriages performed in another State would be recognized unless the marriage was performed in say Texas………man, carrying a marriage license from each and every state would be ridiculous and that's another reason why Section 2 of DOMA NEEDS to tossed!!!
22. Lymis | January 1, 2014 at 6:05 am

I agree it should work that way. I don't think it does, though. This case may be an important one for defining when it does and when it doesn't.
23. Christian | December 31, 2013 at 4:23 pm

They could try but they'd be hard pressed to find a historical precedent that would allow them to disregard other states' contracts (and laws imposed upon certain individuals that would otherwise inhibit interstate travel) without Congressional authority, if equal protection dont succeed in striking down the bans (and so long as the SC is comprised as it is, they most certainly will) then we can rely on historical precedents and legalities
24. Dr. Z | December 31, 2013 at 4:20 pm

Because DOMA Section 2 was always redundant and unnecessary.
25. Dr. Z | December 31, 2013 at 3:11 pm

Kennedy made the point from the bench during the arguments that he was concerned that failure to extend marriage equality was hurting thousands of children from these relationships. The citation of Regnerus was almost certainly aimed at Kennedy for this reason, to attempt to persuade him that SSM harms rather than benefits children. But Kennedy is no fool, he's already seen this "study" because it was cited during Windsor. If it wasn't persuasive then, it won't be now..
26. Schteve | December 31, 2013 at 2:20 pm

Roberts did write that he believed DOMA to be constitutional if the merits had to be considered. The only silver lining with his Windsor opinion is that he declined to join the part of Scalia's dissent about the merits with its usual absurd language. But I still don't hold out much hope for him on future cases.
27. Ryan K. | December 31, 2013 at 2:34 pm

I just re-read his few pages dissent, and frankly don't feel any more confident myself. Interestingly enough, he did do pro bono work on Romer v. Evans, which I wasn't aware of. I can only hope he'd be a 6th vote, or that Scalia or Thomas are somehow off the SCOTUS by the time this gets there.
28. Mike in Baltimore | January 1, 2014 at 2:49 am

I don't think we'll see Thomas voluntarily leave SCOTUS very soon. About the time he was confirmed and took office (10/23/1991), he made a comment that he wanted to be the longest serving Justice in SCOTUS history.

Currently he is 35th in longevity (8,120 days), more than 5,200 days shorter than the length of service of William O. Douglas (13,358 days). If that's the case, we'll see Thomas serving for at least 14.34 more years, or until the end of the 2027/28 term, at least.

And unfortunately, there's a good probability he'll make it, too, as he would be 80 just prior to the end of that term (he was born June 23, 1948). Several justices have served into their 80s, even upper 80s. Harry Blackmun was 86 when he retired; J.P. Stevens was 85 when he retired. Scalia will be 78 on his next birthday (March 11).

Maybe 'Ginny' will find some way to encourage Thomas' retirement, resignation, etc., earlier than he planned?
29. Ryan K. | January 1, 2014 at 7:32 am

All the more reason there will need to be a Democrat in the White House after Obama to ensure future nominations provide for an equality Justice. At this point, outside of Ginsberg's health or an unexpected death, I think Obama is complete with 2 of his nominations to the Court.
30. Bruno71 | January 1, 2014 at 12:42 pm

I really shudder to think of this court getting even more conservative than it is now. Sure, Kennedy is great on gay rights and maybe a few other social issues, but he's very, very conservative in other ways. Even voted to the right of Roberts on the ACA individual mandate/tax question. Imagine another Roberts or Alito appointed by Chris Christie. Or even worse, some total Clarence Thomas part deux nutjob appointed by Ted Cruz or worse.
31. Zack12 | January 1, 2014 at 1:27 pm

That is the thing that should scare us above all others. Elections matter and make no mistake,the only reason the New Jersey Supreme Court isn't filled with nut jobs is the Democrats stopped Chris Christie from getting them through.
32. Matt227 | December 31, 2013 at 2:23 pm

Kennedy has never failed to deliver big on three separate occasions. Why should he now?
33. Anthony | December 31, 2013 at 2:26 pm

Read my comment above.
34. Ryan K. | December 31, 2013 at 2:39 pm

Agree Matt, he's come through each time thus far (and have to wonder if he was there in 1986 when Bowers was decided, would it had been 5-4 the other way since he replaced Powell and Lawrence wouldn't have ever have been needed). I just fear with Ginsberg's comments on Roe and thinking these things should happen more gradually, that for some reason it might be bottled up and not a full victory so it would be marriage rights in all 50 states.
35. Anthony | December 31, 2013 at 3:09 pm

Well honestly they have no other choice. These issues are popping up all over the country. Couples are now considered married under federal law and single under state law. Any lawyer knows that is an automatic lawsuit waiting to happen.
36. Dr. Z | December 31, 2013 at 3:14 pm

All the more reason to deny the stay, but allow the issue to continue to simmer at the district/circuit level before getting involved. A stay would have a chilling effect on future cases and SCOTUS knows it.
37. Ryan K. | December 31, 2013 at 3:41 pm

I can't see Justice Sotomayor ruling on this alone. She has the written motion for a stay, the reply is due 1/3/14 at 12pm, and then the SCOTUS will get on a conference call and decide.

Not sure protocol on this… Will the SCTOUS issue a written ruling and indicate the vote, or just issue a stay or denial unsigned?
38. sfbob | December 31, 2013 at 3:59 pm

From what I have read, neither the Justice nor the Court are required to explain why they issue or deny a stay.

A Justice may simply deny without comment or explanation.

…

A Justice may grant. If an application is granted by an individual Justice, or if the full Court acts upon one, its disposition is indicated by a written order or sometimes, an opinion. An order granting an application will indicate how long the order will remain in effect—usually until the Court acts on the petition for writ of certiorari. In fairly standard language, the order will often go on to state that if the petition is denied, the stay will automatically terminate, but if the Court grants full review, the stay will remain in effect until the Court hands down a decision on the merits and the mandate or judgment is issued.

Reference: http://www.supremecourt.gov/publicinfo/reportersg…
39. sfbob | December 31, 2013 at 4:12 pm

I hope people will notice what's happened.

1. By not simply declining to issue a stay, the state is not afforded an opportunity to apply to a different Justice.
2. By accepting the request for a stay but not issuing an interim stay pending receipt of the plaintiffs' response, due at noon on Friday, she ensures that marriages will continue to occur at least through Thursday.

I may be entirely wrong but I can't help thinking the actions she has and has not taken say a great deal about how she views the state's claims.
40. Mike_in_Houston | December 31, 2013 at 8:17 pm

Yes, especially considering that Justice Sotomayor did grant an interim stay in another matter while at the same time giving the U.S. government until Friday to respond:
http://usnews.nbcnews.com/_news/2013/12/31/221280…
41. Sagesse | January 1, 2014 at 6:13 am

What differentiates these cases is the size of the fines… the harm that would result if there is no stay is in a different league. Also, the Court has already agreed to hear the contraception mandate cases.

In the Utah case, on the other hand, there is ample evidence from 17 other states and DC of the absence of harm, the Court ruled, indirectly, on the issue in two cases last summer, and the appeal hasn't been briefed or heard by the 10th Circuit, let alone appealed to SCOTUS or granted cert. The ability to argue that the case would prevail on appeal or at SCOTUS is a lot of conjecture.
42. bendreyfus | January 1, 2014 at 8:25 pm

The Court has agreed to hear a different set of contraception mandate cases, involving for-profit corporations. (This stay involved religious organizations.)
43. JayJonson | January 2, 2014 at 4:25 pm

I think Justice Ginsberg clarified that she was NOT referring to same-sex marriage when she made the comment about not wanting to go too fast on some social issues because of the polarization that followed the Roe v. Wade ruling.
44. Ryan K. | January 2, 2014 at 8:45 pm

Jay… Can you point to that clarification somewhere? I'd love to read it, and put this fear of mine aside once and for all on her comment.
45. sfbob | December 31, 2013 at 2:16 pm

I have to confess that upon reading the list of citations I suddenly lost interest in reading the actual request. Baker v Nelson, Regnerus, and even David Blankenhorn (who at this point is probably mortified; having been debunked during the initial Prop 8 hearing he became a supporter of marriage equality). They really do NOT have anything; it's little more than wishful thinking on Utah's part. And I see they've gotten the most dynamic set of outside counsel to help them, too (snark).
46. Craig Nelson | December 31, 2013 at 2:22 pm

I have not gone so far as to read the document. That will be for others. But I read up to the statement early on 'each one [of same sex marriages now being allowed to take place] is an affront….' Wow. If this doesn't argue to animus I don't know what will. This argues like a clear discriminatory intent and policy that is clearly and squarely aimed at the dignity of same sex couples and their children.
47. marvelmvs | December 31, 2013 at 4:33 pm

The irony is that the brief concedes that taking away marriage would be an affront to the dignity of the couples involved, thus admitting that denying marriage to same-sex couples is in fact hurting same-sex couples.
48. Sagesse | December 31, 2013 at 2:36 pm

From the Salt Lake Tribune:

"Associate Justice Sonia Sotomayor, who is assigned to oversee states within jurisdiction of the 10th Circuit, has given the respondents — the plaintiffs who challenged Utah’s ban — until noon Eastern Time on Friday to file their response."
http://www.sltrib.com/sltrib/news/57337031-78/cou…
49. sfbob | December 31, 2013 at 2:54 pm

Friday, eh? That provides at least one additional day for same-sex marriages to continue in Utah, assuming that no county clerk's office will be open tomorrow. I can't help getting the feeling that Justice Sotomayor is singularly unimpressed with the arguments presented.
50. davep | December 31, 2013 at 2:52 pm

There's no way that blatant irrational rhetoric like this will escape the notice of SCOTUS:
"helping the state increase the likelihood that any given child will in fact be raised in such an arrangement.”. Regardless of what any judge thinks about SSM, trying to imply that denying civil marriage to same sex couples somehow increases the chances of a kid being raised by an opposite sex couple is just plain idiotic. It makes no logical sense at all.

You would think the anti-SSM folks would be smart enough to avoid insulting the judges with stuff like that. I LOVE it when we get to see them say that crap in court and have it subjected to some scrutiny by a panel of judges.
51. etseq97 | December 31, 2013 at 3:03 pm

Yep – the hostile homophobic tone is pure unadulterated LDS theology. They didn't expect this and it is causing some existential crisis inside the walls of the Temple. Nothing significant happens at the higher levels of state government in Utah without consultation with the LDS hierarchy, especially on an issue such as this. Maybe a mysterious Proclamation will occur "correcting" the infallible, eternal and unchanging doctrine sooner than expected, just like it did with the ban on African-Americans in the priesthood.
52. Straight Dave | January 2, 2014 at 7:13 am

Would LDS prefer to fight this tooth and nail just to make a good show of it, or gracefully concede before they look like even worse morons? Would losing a hard fight be too damaging to their psyche and aura of invincibility? It's sort of like a bully backing off when someone stands up to him because getting the crap beat out of him damages his reputation even more.
53. Jack | January 2, 2014 at 6:04 am

Their problem is that they have no arguments that aren't "just plain idiotic." they are grasping at straws because that's all they've got.
54. Mike in Baltimore | January 2, 2014 at 7:06 am

The one saving grace I see in Utah's arguments is that it is not lawyerly to say the arguments are "just plain idiotic". I'm sure, though, that the attorneys arguing against Utah will find a phrase that says the same, but in much more lawyerly language.
55. JayJonson | January 2, 2014 at 4:29 pm

In addition, note that "illegitimate" children are one of only three or four classes that automatically get "heightened scrutiny." It sounds as though the state thinks it has the right to intentionally harm children who are born out of wedlock in order to harm gay and lesbian couples and their children who would necessarily be born (or adopted) out of wedlock if their parents can't marry.
56. Richard Weatherwax | December 31, 2013 at 2:55 pm

On page 10 of the application they admits that "recent history demonstrated a decided history away from criminalization of homosexual behavior." They then point out that "no state permitted same-sex marriage until 2003." They argue, "The fact that, in the last 10 years of this nations 237-year history, a minority of states have permitted same-sex marriage, does not transform same-sex marriage into 'a deeply rooted' historical and traditional right." This is basically arguing from tradition. It evades the fact that it was the decriminalization of homosexual behavior that has permitted GLBTs to demand those rights which should have always been theirs.
57. Richard Weatherwax | December 31, 2013 at 2:57 pm

Correction: That should be page 11.
58. Richard Weatherwax | December 31, 2013 at 2:59 pm

Correction again: That should be page 12.
59. Lymis | December 31, 2013 at 4:13 pm

If they try to force that one, they may finally get us a definitive ruling that there is no more such a thing as "same-sex marriage" as there is "interracial marriage" or "Jewish marriage" or "left-handed marriage" under the law – there's just marriage.

They didn't create a new right to "women's voting" – they recognized the right for women to vote.
They didn't create a new right to "black doctors" and so on.
60. Richard Weatherwax | December 31, 2013 at 6:37 pm

SCOTUS did not recognize women's right to vote until the 19th amendment was passed in 1920. In the traditional marriage, the man was the head of the house and the woman's vote was expressed through her husband.
61. Lymis | January 1, 2014 at 6:20 am

I don't argue that, and sooner or later, a case like this will be the first one recognizing gay couples' right to marry.

I'm not claiming that the court didn't have a before and after point at which they recognized that a group had access to an existing right.

But you're not going to find anyone, anywhere, much less on a Circuit Court or the Supreme Court that today claims that what women do in the ballot box is a different thing than what men do, and that something brand new was invented in 1920 and only women are allowed to do it.

Female citizens don't have a "woman's vote" – they have a vote. The fact that they have a right to it had a process and a timeline, but now that they do, it's the same vote that male citizens have, with the same rights and responsibilities.

The claim is that same-sex marriage is inherently different in its fundamental nature from what opposite sex couples contract when they marry – including mutually infertile opposite sex couples. Their entire justification for banning it hinges on that fact. If same-sex marriage is marriage, then it's completely invalid to bar an entire class of people from a fundamental right of all citizens by popular vote or legislative action.

If it's not the same thing, and it really is an entirely new relationship, not just opening an existing legal relationship to people who have been inappropriately barred from it, then the states may be free to regulate it in ways that wouldn't apply to marriage.

So far, all they got is "procreation" – and that's so ludicrously flimsy that it can't possibly stand.
62. Richard Weatherwax | January 1, 2014 at 7:44 am

Giving women the vote was a greater departure from "traditional marriage" than the recognition of same-sex marriage. Scalia is a few years older than I am, therefore he should recall the traditional marriage in the 1940's and 50's. Basically, the husband was the head of the household, and his wife obeyed him. Often all property and bank accounts were in the husband's name. Jobs for women were limited to waittressing and domestic work. If the woman was educated, she could get a job as a teacher at the grade school level, or nursing.

This arrangement has a long historical and biblical tradition behind it:

Genesis 3 16 To the woman he said,
. . .
Your desire will be for your husband,
and he will rule over you.”

Colossians 3:18
Wives, submit yourselves to your husbands, as is fitting in the Lord.

1 Timothy
11 A woman should learn in quietness and full submission. 12 I do not permit a woman to teach or to assume authority over a man; she must be quiet. 13 For Adam was formed first, then Eve. 14 And Adam was not the one deceived; it was the woman who was deceived and became a sinner. 15 But women will be saved through childbearing—if they continue in faith, love and holiness with propriety.
63. KarlS | January 1, 2014 at 12:32 pm

Are you suggesting that bits and dribbles from an ancient compendium of illiterate goatherders' campfire tales ought to have some relevance to 21st century human rights?
64. sfbob | January 1, 2014 at 1:12 pm

I think the writer is providing them as examples of now-discarded precedent which at one time served to cement the second-place status of women.
65. Richard Weatherwax | January 1, 2014 at 2:12 pm

They are meaningless in a modern court of law, but they are certainly not discarded by the religious right, and they have a strong influence on the right's stand on single sex marriage.

The importance of having children is often cited in the Bible. The first command that God gave to mankind was, "Be fruitful and increase in number" (Genesis 1:28.) Thus the religious right feels that the marriage has to be between a man and a woman so they can follow God's commandment.

Naturally I disagree with their position, but this is where their ideas come from.
66. Dr. Z | January 1, 2014 at 2:32 pm

As long as they're not trying to deprive me of my civil rights, I don't care if they believe Jehovah won the cosmos in a friendly craps game with the Flying Purple People Eater.
67. Craig Nelson | January 1, 2014 at 2:23 pm

It is an interesting point, and well worth mentioning, that granting equality of rights to women (including the right to vote and to equality in the workplace) is the most significant departure from 'traditional' marriage, which, because it is centrally based on rigid gender roles, with women as strictly subordinate.
68. Craig Nelson | December 31, 2013 at 9:24 pm

At least they are only claiming a 237 year history – the history of the US as a political entity founded upon constitutional rights. Anything more than 237 years takes you into US colonial history where the law of England was incorporated as referenced by Bowers v Hard wick and repudiated by Lawrence v Texas. Even England only goes back to 927 – or thereabouts – and in any case has just this year gone on to adopt same sex marriage (my target is people who talk about a thousand years of history eg Alito. I have no idea what marriage laws there were in the kingdoms that preceded England). As has been pointed out the lengthy criminalisation of homosexuality, found unconstitutional by Lawrence, prevented marriage rights from even being thought about and of course Scalia also pointed this out in his Lawrence dissent.
69. JayJonson | January 2, 2014 at 4:32 pm

The historical reference to the criminalization of homosexual behavior may indicate that they are unaware of Justice Kennedy's comment that the Hardwick v. Bowers was wrong when it was decided and was wrong in 2003 when it was repealed. That seems to suggest that it has always been unconstitutional to criminalize homosexual behavior even though it was not recognized by the Court until 2003.
70. Guest | December 31, 2013 at 2:56 pm

Yawn, Utah-Christianists, We've been here and done this already. You continue to polish the same stinking turd over and over. You deserve to fail because of your empty, hateful beliefs.
71. palerobber | December 31, 2013 at 3:23 pm

from p.21…
"[…] same-sex couples who chose to marry during the period before the Tenth Circuit and this Court resolve this dispute on the merits will likely be irreparably harmed without a stay. They and their children will likely suffer dignitary and financial losses from the invalidation of their marriages if appellate review affirms the validity of Utah's marriage laws."
72. Colleen | December 31, 2013 at 3:28 pm

I know this has been asked elsewhere but I can't remember if it was answered. Has a legal marriage EVER been invalidated by a Court ruling? I'm just a casual observer, but this seems like rank amateur hour.
73. sfbob | December 31, 2013 at 3:38 pm

As far as I can discern (and please note that I am not a lawyer), by definition a "legal" marriage can't be invalidated by a court ruling. The only time a marriage is invalidated by court order is when there was undisclosed information that would have precluded the marriage from taking place to begin with. For example, if one of the spouses is in fact married to someone else, somewhere else but nobody knows it then the second marriage was not valid from the moment it was solemnized. Or suppose one party to the marriage is under the legal age for marriage but presents falsified documentation of his or her age and the facts surface only later on. Once again, such a marriage could be voided since it was not legal when it took place. If at the time the marriage was contracted it was legal, then it stays legal.

In 2004, San Francisco married several thousand gay and lesbian couples. That action was taken strictly on the initiative of Mayor Gavin Newsom. His action ultimately brought about the 2008 CA Supreme Court ruling striking down Prop 22, later overturned by Prop 8 (worded the same as Prop 22 but in the form of a constitutional amendment instead of a statute), which of course was itself overturned by by the Supreme Court in June. In the interim, later in 2004, it was determined by the California Supreme Court that, regardless of the constitutionality of Prop 22, Newsom had no legal authority to allow those marriages to take place and therefore they had no legal force even when they happened.

The marriages taking place in Utah are happening as the result of a court decision and therefore, if I understand correctly, must be construed as valid since they were legal at the time they were solemnized. A judge's action is very different from that of a mayor. I don't think any subsequent court ruling could "unwind" them.
74. JustMe | December 31, 2013 at 4:01 pm

That would be incorrect… If judge shelby is overturned by SCOTUS or 10th, then the marriages were never legal to start with. A reversal means that the judgment never happened.
75. Dr. Z | December 31, 2013 at 4:28 pm

Hi troll, welcome back.

The Utah marriages are legal. What you are trying to argue is that a stay was in effect, when in fact it was not. If your buddies in the Utah AG office had been competent lawyers instead of buffoons and crooks, they would have had a stay request prepared. They didn't, so regardless of what happens next those SSM are valid. That's the consequence of not having a stay in place.

You're welcome.
76. JustMe | December 31, 2013 at 5:25 pm

No … when the judgment of a district court is REVERSED… then the parties are placed in the position they were in BEFORE that judgment was rendered. Therefore, if Judge Shelby is reversed by either SCOTUS or 10th Circuit, then the parties are in the same position as if the UTAH laws had not been declared unconstitutional…. thus the marriages would be void.
77. Dr. Z | December 31, 2013 at 7:09 pm

If the judgment of the district court is eventually reversed, then no further same-sex marriages may be performed as of that final ruling. However, in the absence of a stay the marriages performed during the interim will remain valid. Otherwise there would be no need to apply for a stay in the first place. If the 10th Circuit (or SCOTUS) were inclined to void those marriages they would grant a stay. So far they have denied a stay. Assuming SCOTUS denies Utah's latest motion, then SSM is current law in Utah.
78. Rose | December 31, 2013 at 9:34 pm

Sorry, but you'd be INCREDIBLY wrong……..unless the marriages were entered under fraudulent reasons in the first place, which they were NOT……the marriages that have taken place will REMAIN valid, legal and recognized regardless of how the State does….why? Because the marriages were done with the proper justification from Judge Shelby………just like the 18,000 legal marriages that were done here in California when the CSSC refused to stay their ruling in the re Marriage decision in May of 2008!!!
79. Drpatrick1 | January 1, 2014 at 9:06 am

I do not believe any court would try to "unwind" those marriages that are entered into while they are legal. However, I do not know of any legal precedent which addresses this situation. In the CA Strauss decision, the justices felt compelled to address the 18,000 marriages once Prop H8 was upheld. If I remember correctly, they found that the marriages would remain legal because the Amendment process in CA requires simple language and a single issue to be addressed. They found that the intent of the voter could not be determined, as to whether the majority of voters intended those already married to be deemed unmarried. This situation is different than what is happening in the 10th circuit.

Having written this, however, I do not think a marriage entered into without fraudulent intent should be declared void. The State of Utah, in their stay request, is arguing that it is a burden on the state to retroactively nullify these marriages (though my guess is they would happily accept that burden if given the chance) AND a burden on these couples to have their marriages nullified. They are in essence arguing that it is in the best interest of these couples not to have access to marriage in the interim. They are arguing strongly that appellate review does have the potential to invalidate those marriages.

What's more, it seems to me they would have a better argument for a stay if the marriages could not be invalidated. They argue that each marriage is a detriment to the state. If the marriages were invalidated in the future, this would erase this "harm" from the state, which would erase the need for a stay. Why would they argue, in the context of a stay request, that those marriages would be invalidated? This seems to be a position in favor of rejecting the stay request.

In any case, there is plenty of room for debate on this issue. We should entertain all thoughts on this, for I don't believe anyone can say with certainty what the final outcome will be. At this point, all we have is conjecture.
80. Dr. Z | January 1, 2014 at 9:40 am

Let's turn it around: they would have a better argument for invalidation later (if they win) if they hadn't argued so strongly for it now, in their stay request. In so doing the state has raised the issue and placed it before the bench. If the court denies the stay, they are in effect acknowledging that marriages performed in the interim before a final ruling are valid. If the state comes back later and wants the marriages invalidated, the plaintiffs can always respond by saying this is not a new issue. The state raised it during the stay request. Since the court did not agree at that time to a stay, it can hardly go back later and invalidate these unions. In denying the stay the court has effectively grandfathered in these marriages, regardless of the final outcome.
81. Drpatrick1 | January 1, 2014 at 10:29 am

On the contrary, if they denied the stay, it would certainly be because they, like the 10th circuit feel the appeal is unlikely to win. However, in the less likely event that UT did prevail, there is no permanent injury, as those marriages could be voided. Thus, a stay is unnecessary to prevent the Appellants, the State of Utah, from unnecessary harm, in the event they were to win. A stay of execution is often granted on appeal, as the risk of unnecessary harm is unquestioned if the appellant where to be successful.

If a stay is granted, it could be because the court feels those marriages could not latter be invalidated, and thus it may be prudent to put the issuance on hold to avoid unnecessary ambiguity during the appeal.

Please note, although I think this issue is at least worthy of an intellectual discussion, I do not think it is particularly likely that UT will win in either the 10th or at SCOTUS in the main appeal or for its request for a stay. If my husband and I hadn't already married in CA, we would feel quite confident in marrying now in UT.
82. Dr. Z | January 1, 2014 at 11:36 am

I agree there isn't a lot of precedent to guide this – but let's review what happened in Perry. When Walker ruled for the plaintiffs, the proponents of Prop 8 requested a stay of the ruling. Walker denied their request stating that the proponents had little likelihood of success, they had not shown that the state would suffer any harm, and the trial had established that a stay was not in the public interest. Nevertheless Walker used his own discretion to suspend his ruling for a few days until the proponents could request a stay from the Ninth Circuit. Shortly thereafter the Ninth issued a stay without disclosing their reasoning; but there's not much doubt that the reason the Ninth did issue the stay was because they were concerned about the legal status of the marriages. It certainly could not have been the likelihood that the proponents would prevail on appeal due to the serious questions about whether they had standing; the standing question alone would have been sufficient grounds for denying a stay. Certainly Walker weighed the standing issue heavily in denying the stay request at the district level.

The only justification the Ninth could have had for issuing the stay was if they felt this was their one opportunity to prevent marriages that could not later be invalidated. The same logic would extend to SCOTUS: "If anyone can give just reason why these two should not be joined in marriage, speak now or forever hold your peace." That is a tradition deeply embedded in the custom and practice of marriage, which the courts cannot disregard.
http://www.ca9.uscourts.gov/content/view.php?pk_i…
83. Drpatrick1 | January 1, 2014 at 12:28 pm

Wow, I was totally with you in this first paragraph. I thought you were going to agree with me!

I agree they could have granted the stay for the reason you site. Alternatively, they could have felt that a greater harm would befall any couple who married then had that marriage invalidated. They could also have issued a stay since prior to Windsor, the only direct SCOTUS precedent was a one sentence dismissal of a mandatory SCOTUS appeal of a MN SC ruling. Thus, though the 9th may have felt the appellants would not likely win at the 9th, it was hardly a guarantee they would lose at SCOTUS. They did not justify the stay, so we really cannot know the reason.

What I think we have proven here, is there is room for debate of all the outcomes of an ultimate UT win. I do not claim to know what would happen, only that it would leave some uncertainty.
84. Rose | January 1, 2014 at 9:42 am

Sorry, but these legal marriages are NO different than mine or the other 17,999 that took place before the passage of Prop 8…….and that is what the State is arguing is that the harm caused to these legally married couples if they should win would be the nullification or invalidation of their marriages which simply ISN'T going to happen…….once a marriage is entered as legal……NOTHING short of fraud can undo it and if the State of Utah tried……..I would hope that these couple sue the State for EVERY dime they have…….because NO ONE would do this to a heterosexual legal marriage!!!
85. Drpatrick1 | January 1, 2014 at 10:47 am

When the 18000 marriages happened in CA, it was after a court of last resort had ruled. There was no outlet left by those who oppose equality that could negate the right of every legal age adult to access a nonbigomous, nonincestual marriage. Therefore, those marriages were on extremely strong legal footing. In Strauss, the court found those marriages to remain legally intact, and enforceable, because they found that Prop H8 only prevented CA from granting and recognizing new marriages.

This was a very different situation from CA in 2004 when hundreds of non fraudulent marriages were invalidated after the CA Supreme Court ruled that a mayor did not have the constitutional authority to grant marriage licenses contrary to CA law. Although they later found that law to be unconstitutional, they did not permit toes marriages to be reconstituted. This is true even though with their new ruling in 2008 that CA never had the right to deny marriage equality.

The situation in UT is much more analogous to the 2004 example. If upon appellate review, UT were to prevail, it would mean that the District court erred, and never had the authority to allow the issuance of licenses in the first place. I believe there is plenty of room for debate here, as to what then would happen to the thousands of couples who marry in the interim.

Of course, I think UT has a very weak argument here, one I believe is not strong enough to withstand constitutional scrutiny. As such, I think it would be unwise to avoid marrying in UT simply to await final outcome of this case.
86. Bruno71 | January 1, 2014 at 12:33 pm

It stands to reason that even if the possibility were remote that the 10th Circuit or SCOTUS could undo Shelby's ruling, a stay should've been implemented immediately if overturning his ruling would result in those marriages being construed as invalid. Not only did Shelby fail to grant a stay, the 10th Circuit did as well, and we're about to see what SCOTUS does. I think the very fact that no stay has been allowed to date strongly connotes that these marriages should be construed as validly obtained, regardless of the ultimate ruling on the merits of the case.
87. sfbob | January 1, 2014 at 4:51 pm

Justice Sotomayor had the discretion to issue an interim stay pending receipt of the plaintiffs' response on Friday; she declined to exercise that discretion. As tomorrow is a normal business day, couples are going to continue to get married until 5 p.m. or whenever the county clerks' offices shut down for the day. Her willingness to let marriages to continue for another day strikes me as a strong indicator that she doesn't give the appellants' arguments about the prudence of a stay any credence. I'm inclined to think she also doesn't believe the state is likely to win on appeal.
88. GregG | January 1, 2014 at 7:58 pm

If SCOTUS were to grant a stay would they not have to also say something about the validity of the marriages already performed either as part of the stay decision or as a follow-on order shortly thereafter?
89. Mike in Baltimore | January 2, 2014 at 7:25 am

The US Constitution prohibits ex post facto laws (after the fact laws). Using that reality, a prosecutor prosecutes a violation of the law according to the law in existence at the time of the violation, even if the penalties have been increased but not yet in effect. For example, possession of a CDS (controlled dangerous substance) might be a fine, but no prison time. The state's legislature increases the fine AND adds the possibility of jail/prison time. If the violation took place prior to the effective date for the increased penalties (even if the trial takes place after the increased penalties), the prosecutor and judge are limited to fining the violator, with no jail/prison time, if the violator is found guilty.

Judge Shelby overturned the Utah laws and state constitutional amendment, thus Marriage Equality is the status quo right now in Utah. Unless a stay is issued (none has been so far), or a new law (that conforms with the US Constitution) is passed, Marriage Equality is the status quo in Utah, and has been since Judge Shelby handed down his ruling.
90. Steve | January 2, 2014 at 6:04 am

His other name is SHOE THROWER
91. Rose | December 31, 2013 at 4:06 pm

That same tactic was done here in California by Kenneth Starr who tried to tell the California State Supreme Court that the proponents of Prop 8 were NOT trying to nullify the legal 18,000 marriage of Same-Sex Couples……just that the State should NOT have to recognize them as being valid……..it DIDN'T work for the proponents of Prop 8 and it's NOT going to work for the State of Utah either!!!
92. Deeelaaach | January 2, 2014 at 3:35 am

Transgender marriages have been invalidated by court rulings. If I recall some of the cases correctly, the ruling usually says that they should never have been married at all by ruling that the marriages were same sex marriages in effect. Again if I recall correctly, this has happened even if they were legally married due to a legal birth certificate change on the part of the transgender individual. The state in question chooses to defer to the biology of birth rather than the letter on the birth certificate.

So far as I know, this is typical more of divorce cases or of inheritance cases. The court invalidates the marriage to the benefit of a particular party that sues in order to gain something like custody (after adoption?) or an estate. I don't remember hearing of any case where a marriage was invalidated where a person transitions and the couple stays together.
93. palerobber | December 31, 2013 at 3:58 pm

also from p.21…
"Assuming the Tenth Circuit and/or this Court ultimately holds Utah's Marriage Amendment to be valid […] the State inevitably will confront the thorny problem of whether and how to unwind the marital status of same-sex unions performed before reversal of the district court's decision. Considerable administrative and financial costs will be incurred to resolve that problem, and the State's burden will only increase as the number of marriage licenses issued to same-sex couples continues to grow."
94. palerobber | December 31, 2013 at 4:08 pm

so here the state admits that those marriages aren't just going to get "invalidated" all by themselves. even if the court rules in their favor, it will require further action and money from the state to get all these marriages voided. so the state wants the court to issue a stay to protect its citizen's from the state *itself*. very odd.
95. SoCal_Dave | December 31, 2013 at 8:44 pm

They're worried about the cost of "unwinding" marriages, yet they have no trouble spending $2M for outside counsel?
96. sfbob | December 31, 2013 at 3:46 pm

These folks really don't think about what they're saying, do they? If the state drops its appeal, the couples and their children will suffer no "dignitary or financial losses." In other words the state's insistence on invalidating the couples' marriages is the action inflicting the loss. I believe Judge Shelby addressed this when he denied a stay of his ruling.
97. Dr. Z | December 31, 2013 at 3:51 pm

No they sure don't. Otherwise they wouldn't have included that whole gratuitious "biological parents are better for children than adoptive parents" section. Are these clowns unaware that CJ Roberts has two adopted kids?
98. JustMe | December 31, 2013 at 4:03 pm

Problem is… Judge Shelby is the starting point, not the final point. The decision of his is not final at this point… It is final for purposes of appeal, but not as a determination of the law.
99. sfbob | December 31, 2013 at 5:17 pm

I don't see that as a problem. There is nothing in Shelby's decision that could be contested.
100. JustMe | December 31, 2013 at 6:26 pm

Wow … so you dont know American History?

The first clue that something is amiss is revealed in the error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”

That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.
101. Dr. Z | December 31, 2013 at 6:58 pm

The relevance to the current case being…what?

And BTW, there have been a few additional amendments (and case law) since then.
102. JustMe | December 31, 2013 at 7:37 pm

Thats from Shelby opinion… Since he doesnt even know basic American History…
103. Dr. Z | December 31, 2013 at 7:48 pm

Still waiting for your point.
104. Bruno71 | January 1, 2014 at 12:51 am

Likely a long wait.
105. Jonny | December 31, 2013 at 7:09 pm

Clearly this troll has nothing better to do than to come on this web site. Get a life already. You people are losing at you all are coming to reality that the tide is turning wether your bigoted ass likes it or not.
106. JustMe | December 31, 2013 at 7:44 pm

OK so I agree with the [at least] 2000 year old definition of marriage and that makes me a bigot and a troll.

Judges make mistakes all the time. Some are appealed and some are not. This one is… so until the court of last resort rules…
107. Colleen | December 31, 2013 at 7:58 pm

You don't need to be a bigot to be wrong, dude.
108. Deeelaaach | January 2, 2014 at 11:55 am

Colleen, I hope you don't mind my posting here in response to JustMe – I was typing a much longer post and then deleted it several hours ago. I've come back to make a shorter reply and the site has the Reply button saying "Posting" and in grey, so I hope whatever it is doing is removed by the admins.

To JustMe: Your last post was the funniest – and most ironic – post I've seen by you yet. First you use an ad hominem attack on Judge Shelby in a prior post – you can't refute his arguments so you attack his knowledge of history. But what is funny about that is you appear to claim that he doesn't know history – and then you say in a later post that the "[at least] 2,000 year old definition of marriage makes me a bigot and a troll." Wow. Here's the funny part: your ad hominem remark about the history of marriage for the last 2,000 years is way more inaccurate that the understandable error in the history of the Bill of Rights and its ratification mostly in tandem with the Constitution. See post below by Drpatrick1.

If only you'd checked your history before posting that remark about the 2,000 plus definition of marriage, you'd have realized that Shelby made a minor historical error in a tiny part of his ruling and you made a big historical error as a single statement of implied fact. At least Shelby had most of his historical facts right. Your post about that 2,000 plus years has no facts right.

Why don't you do actual research on the history of marriage before posting stuff like that? I did just that, and the existence of multiple definitions of marriage in other cultures and other parts of the world will put that 2,000 plus year definition into the dust where it belongs because it was never true in the first place, even in the Bible most people cite. (I agree that you did not mention or cite the Bible at all.)

Now you might not like Wikipedia, but at least they *try* to get their facts right. Their marriage article: see specifically: http://en.wikipedia.org/wiki/Marriage#Types_of_ma… has 300 citations from outside publications showing more information than I can digest at one sitting. So if you don't trust them, please at least read the articles they've cited – all 300 of them would be a good start if you truly believe what you said about the historical definition of marriage. Remember, it is you that made the assertion about the 2,000+ year definition of marriage, so if you're going to make an assertion, at least try have your facts straight before you do. It's your job to prove your assertion, not our job to disprove it. Hmmmm, I've been happy to do just that so far it seems…

One last thing: if you don't want to be addressed as a bigot and/or troll, you might try to do some research – I only skimmed the marriage article because I knew what I was looking for already. You might not cherry pick data as the 2,000 years part of your posts suggests at least to me (thus I am not accusing you of doing that intentionally or at all since my interpretation may not be what you meant), and you might not use ad hominem attacks.

The only reason I can see for not responding to people's requests for your point is that the attack itself was the point. At least that's what the point of ad hominem attacks are for – discrediting the person rather than the opinion. Please note that I am not calling you either a bigot or a troll, but others may have for the reasons I cite above, and for the reasons they cited also.

If you want to have any credibility on this site, I suggest you use an entire data set instead of cherry picking. I'm not accusing you of doing that because I can't know your intent or the extent of your knowledge, – though your knowledge does seem a bit limited from what I can see. You might try doing research and bring real hard facts to the table – with the history of marriage, data from historians, anthropologists, sociologists etc would be a good start. Most people I know call these pesky details from the above listed professionals "facts." And you might try not using ad hominem attacks against people because you can't discredit their arguments with facts and all the data instead of just the data that fits a particular world view. That's what we deal with on this site – all the facts if we can get 'em. If you bring that to the table, we can have a real discussion. And you could actually have some credibility too.
109. Deeelaaach | January 2, 2014 at 11:59 am

Sorry folks – three final review readings of the post in order to catch errors prior to posting and I *still* didn't catch the redundant sentence at the end: "Most people I know call these pesky details from the above listed professionals 'facts.' " Oh well.
110. Jonny | December 31, 2013 at 8:18 pm

Your religious beliefs of what marriage is doesn't constitute a valid legal argument. Go back to your hole troll.
111. StraightDave | December 31, 2013 at 8:24 pm

Clinging to archaic and discredited discriminatory treatment for no good end does indeed make one a bigot. Notice I didn't specify any individuals, just clarified a definition. You decide if the shoe fits.
112. palerobber | December 31, 2013 at 9:01 pm

whoops, you're forgetting that this is Utah…

state motto:
"No changes to the fundamental definition of marriage in [1][0][9] years!"
113. Richard Weatherwax | December 31, 2013 at 7:36 pm

To counter the argument that a Bill of Rights could be interpreted to limit individual rights to only those which are listed, Madison submitted what is now the 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People." The Supreme Court has declared marriage to be a right. Why should anybody allow a state to take a right away from them?
114. JustMe | December 31, 2013 at 7:52 pm

The Supreme Court has declared MALE-FEMALE marriage to be a right. It has not declared same-sex marriage to be a right.
115. Gary | December 31, 2013 at 8:11 pm

The Supreme Court has declared Marriage to be a right. It has not declared Marriage to be a right with exclusivity to heterosexuals. In fact, it de-facto declared Marriage to be right when it rendered it's decision in Windsor.
116. Dr. Z | January 1, 2014 at 5:07 am

As well as Loving v Virginia. They did not find that there existed such a right as interracial marriage; they reaffirmed that there existed a right to marriage, that could not be abridged on the basis of race.
117. Rose | December 31, 2013 at 9:48 pm

Where has SCOTUS EVER solely ruled that marriage is ONLY Fundamental right if you happen to be wanting to marry a man or a woman and you are the opposite-sex?

SCOTUS has ruled 14 times that MARRIAGE is a Fundamental Right just like Procreation is a Fundamental right, and NEITHER one of them can be denied……..here are some cases that clearly prove my point:
Skinner vs Oklahoma was about the right to procreation….one can NOT be force to be sterilized.

Griswold vs Connecticut was again about one's right to decide when the woman wanted to get pregnant.

Loving vs Virginia was about the right to marry the person of one's choosing without regard to the color of their skin

Zablocki vs Redhail was about the right to marry and how it can NOT be taken away just because one has failed to pay court ordered child support

These cases all clearly mention that Marriage is a FUNDAMENTAL RIGHT and CAN NOT be taken away or ELIMINATED just because of the choice of the person one wants to marry……in this case someone of the Same Sex or gender!!!

I DIDN'T lose my FUNDAMENTAL RIGHT to marry just because I married a woman……..and that is why Utah will lose in my opinion…….that and because if this is THE CASE to make it to SCOTUS on the Right to marry being Fundamental……….it will do so because of a ruling by the 8th Circuit Court of Appeals from 2006.

My guess is SCOTUS is NOT going to want to jump into ANOTHER Marriage Equality case so soon……..they will deny the Stay and go from there!!!
118. Lymis | January 1, 2014 at 6:35 am

"The Supreme Court has declared MALE-FEMALE marriage to be a right. It has not declared same-sex marriage to be a right."

I don't think they've ever definitively addressed the gender of the people in a marriage – certainly not to the extent of defining marriage as exclusively being an opposite sex pairing. That's one of the things about the law – especially at the Supreme Court level.

They can use examples that make it clear that the examples they are using apply to opposite sex couples. They can even rule on things that only apply to opposite sex couples (pregnancy resulting from sex between the spouses, for example).

But unless they specifically say that it's definitional, it isn't. A case could come before them that was filed by an Episcopalian, and they can rule about how people's religious rights as citizens must be dealt with, but in doing so they don't declare all other religions invalid or illegal.

Nobody's claiming that the Supreme Court has not recognized the right of opposite sex couples to marry. But they have never definitively declared that ONLY opposite sex couples have such a right.

And they've had plenty of opportunities to do so – it's not as if gay people or same sex couples are a particularly new idea, or that the Court hasn't addressed gay rights relating to relationships. Even when they were ruling against gay rights – as in Bowers – they've carefully avoided saying that there was not a right to marriage, and even when it made sense to address the issue – as in Lawrence – they've sidestepped the issue.

You can feel that they SHOULD declare opposite sex marriage to be the only form of marriage that people have a right to, you can't claim that the Court HAS declared it. So far, they've been deliberately silent about it.
119. sfbob | January 1, 2014 at 1:09 pm

The basis of Loving vs Virginia was not that there is a right to INTERRACIAL marriage but that there is a right to chose whom one will marry without the interposition of extraneous criteria and that previous adverse rulings on antimiscegenation laws erred by using the right to an alleged certain kind of marriage in reaching a legal conclusion. Rulings such as Baker vs Nelson (which was more of a dismissal than a ruling and is going to be disappearing VERY soon as even remotely precedential) and many subsequent rulings against marriage equality made the same blunder. The record is now in the process of being corrected. The gender of the proposed partner in marriage will be demonstrated to fall among the extraneous criteria that the state may not impose.
120. Deeelaaach | January 2, 2014 at 8:07 am

Since you have asserted that SCOTUS has done so, please provide actual proof via a citation. Please don't just assert things and hope we believe it because we won't. You might believe it, but we want proof. And since those on this site probably know marriage law better than you do (we have to, even if most of us aren't lawyers), it would be best to at least try to stay in step and actually learn as you go.

You can assert things all you want but if you want to get any traction on this site, we deal in facts not opinions (okay, so we deal with judicial opinions). On this site, your opinion about that is just that, an opinion, until you back it up. Why don't you find proof before you post? Even things that you think are proof are better than just thinking something is right and asserting it without any attempt at all at finding proof for your assertions.

Please at least *try* to back up your assertions if you want any credibility at all here. (You could at least tell us which marriage case you think said that marriage only applied to a man/woman marriage!) And if you're not sure about something, ask. Don't worry, we'll set you straight. Okay, so I know you'll worry about precisely that. Oh well, you can't win 'em all.
121. Drpatrick1 | January 1, 2014 at 10:08 am

While literally true, your basic history lesson here is quite incomplete! The young country would not have survived the first congress without the Bill of Rights. It was talked about before the constitution was written, was proposed before ratification of the constitution, and essentially agreed to with the first congress. Without the bill of rights, the constitution was felt to be only a minimal improvement on the articles of confederation. It was only with the passage of the Bill of Rights, was another constitutional convention averted, and thus the dissolution of the United States! Thus, while it is quite literally true that at the moment of ratification of the constitution, there was not a signed Bill of Rights, it is intellectually dishonest to say the Bill of Rights did not exist at the time the constitution was ratified.

Further, the Bill of Rights was initially not included in the constitution because it was felt that enumerating specific rights would imply or could be interpreted to mean that only those rights were reserved to the people and the states. The Federalists argued that it was better to leave this out, as it then implied that the people reserved all rights granted the Government by the constitution. Jefferson argued it was better to enumerate those rights reserved by the people, as far as could be done, than to rely on congress to willingly allow the people those rights. He said just because one could not possibly enumerate all rights to be preserved, did not mean it was fruitless to enumerate those rights that could easily be done. In truth, there was little to no debate about any rights not specifically mentioned in the bill of rights until the mid 20th century when Griswald established the right of Privacy as being a right reserved by the people. Though the outcome of that case is hardly controversial today, it was, pardon the word, revolutionary at the time it was handed down. In fact, this right of privacy is the foundation of the right to abortion, private sexual activity that is unregulated by the state, etc. these issues are quite controversial today. This is exactly the concern of the antifederalists, those who wanted the bill of rights in the first place. They worried that the congress would not grant the people rights not specifically mentioned in the constitution. It was only thought to weaken the constitution, when after not incorporating it directly into the constitution, it would have to amend the constitution so soon after it's ratification. They ultimately agreed to the amendment process, and thus the ratification of the First 10 amendments in order to stave off having to rewrite the whole constitution.

So yes, it is intellectually honest to write that at the founding of this country, the Bill of Rights was important to protect an individual from certain actions by the government.
122. davep | December 31, 2013 at 5:26 pm

"problem"? It's not a problem given the strength of the arguments that won the case and the complete lack of any opposing argument. There is no stay, there won't be one, and regardless of how long the opposition drags this through the courts, SSM has already begun in Utah and will continue. No problem. In fact, the further this case goes, the more states will be affected by those subsequent rulings and will gain SSM as a result..
123. Zack12 | December 31, 2013 at 4:02 pm

Here's the thing about Kennedy and while I THINK a stay will be unlikely if it gets to the full court.
If he had wanted to issue a narrow ruling in DOMA,he certainly could have done so using the 10th amendment.
He didn't though,he used the 5th amendment and equal protection,language he knows full and well will be used in lawsuits to not only challenge laws but win them as well.
Scalia said as much in his ruling and say what you will about him,he doesn't beat around the bush.
124. Craig Nelson | December 31, 2013 at 4:28 pm

I think you're absolutely right about Kennedy plus he made the final determination on the restarting of marriages in California and was the person who finally shot dead the zombie Prop 8 (by this point already deaded by SCOTUS and the 9th Circuit). We will doubtless know in a few days but at this moment we can have hope. Utah may have cause to regret putting such a pile of drivel in front of SCOTUS (and by the way we surely now know what is coming in their 10th Circuit and SCOTUS appeals). Still, at least the antis get to have their last hurrah.
125. jpmassar | December 31, 2013 at 4:16 pm

Check it out:

Help Wanted: the Annotated Quest for an Attorney to Save Utah.
http://www.dailykos.com/story/2013/12/31/1266337/…
126. Dr. Z | December 31, 2013 at 4:41 pm

The conflict of interest part could be interesting given the malfeasance complaint filed against Stewart in 2004 due to alleged campaign finance violations during the Amendment 3 fight.
127. Sagesse | December 31, 2013 at 6:43 pm

I thought this was a joke (well, it is a joke, but never mind that). The state really has asked for proposals by Jan 7. From Deseret News:

"Newly appointed Attorney General Sean Reyes put out a request for proposals Tuesday. It is accepting bids until Jan. 7."
http://www.deseretnews.com/article/865593334/Utah…
128. Deeelaach | January 2, 2014 at 8:13 am

So they're really putting out a "Help Wanted" sign in the "window?" Wow. That boggles the mind. It says to me that they'll take any old lawyer, off the street as it were.

"I saw this help wanted sign…"
– "Are you a lawyer?"
"Yes."
– "You're hired!"

Okay, I know it wouldn't be this simple, but … just … wow!
129. StraightDave | January 2, 2014 at 8:41 am

"7. A conflict of interest check must be performed."

In other words, you must be prepared to toe the LDS party line in your arguments. If you're not a card-carrying bigot, we don't trust you.
130. Lymis | January 1, 2014 at 6:38 am

This sort of shoots serious holes in the "all the brightest and best moral and legal minds are with us on this one, and the very fate of society hinges on keeping marriage limited to only opposite sex couples," They should be advertising for extra help in sorting through the thousands of legal teams begging to be part of such a landmark case, rather than scraping the barrel looking for someone who will work cheap.
131. MightyAcorn | January 1, 2014 at 8:41 am

It's also incredibly ironic considering how many millions LDS has poured into their anti-marriage campaigns over the past two decades that they now can't underwrite the defense in their home state. A little p.s. on that "Dear Utah, Karma's a bitch" postcard that's circulating, huh?
132. davep | January 1, 2014 at 10:26 am

Ooooh! How do I sign that postcard !?
133. bayareajohn | December 31, 2013 at 6:42 pm

This case may be the all-time blockbuster for SSM. It's so clearly framed, with one side deeply rooted in religious and traditional bigotry, facing off squarely with equal rights on the other side. It's the Scopes Trial of this issue… No subtleties, no middle ground, no standing or side issues to provide escape from a real decision on the real issue… propelled by the urgency of a state desperate to stop the train that has already left the station. This is the big one. SCOTUS can't look away. We win this, or we have the biggest setback in years. Same stakes for the haters. NOM must know this, and we should expect extraordinary efforts. As such, I am surprised to see the attorney appointments by the state so far. They -have- to know that it can't help them for it to be so obviously the Mormons vs. the Gays.

Expect outside (non-public) money to pay State counsel. A lot of it.

"The Sutherland Institute, a Utah-based conservative think tank, has already publicly called for Reyes to hire outside counsel, expressing disappointment in how the case has been handled so far. The institute's president, Paul Mero, said the organization would even be willing to foot the bill — under the right conditions. "We would be willing to relieve taxpayers of that burden if it's the right counsel," he said." – http://www.deseretnews.com/article/865593219/Gov-…
134. marvelmvs | December 31, 2013 at 7:09 pm

Good. Let the religious groups take on the burden of paying for this legislation. The state should not have to pay for it.
135. Straight Dave | December 31, 2013 at 7:34 pm

"…if it's the right counsel"?

I guess that just about guarantees our win. Anybody a Utah-based conservative think tank approves is an LDS puppet thoroughly drowning in the Kool Aid
136. davep | December 31, 2013 at 8:49 pm

Well, I do agree that it's a clear case without all the extra distractions and 'baggage' that Prop 8 had with the standings issues, but it doesn't seem likely to me that this will go beyond the 10th Circuit to SCOTUS. I don't see why SCOTUS would feel compelled to take up this particular question and tackle the 'big question' about constitutional right to SSM with a nation-wide ruling. They can easily decide not to. It looks to me like it will either go as far as the 10th and will result in SSM in all of the states in the 10th, or there is a somewhat slimmer chance that Utah will finally get the message loud and clear from those other states in the 10th to back off and stop pressing this issue and Utah will drop the appeal before then.
137. Dr. Z | December 31, 2013 at 9:22 pm

Agreed. I suspect they will wait for a circuit split before granting cert to a right-to-marry case like this one.
138. StraightDave | December 31, 2013 at 9:45 pm

And I don't think the 8th/10th split will do if for them. If the 10th is pro-SSM, I expect SCOTUS to let it go. The 8th (Bruning) is 7 years old now and not live. They are much more likely to react to a current ruling they don't like.
139. ebohlman | January 1, 2014 at 3:17 pm

Yep. The ruling from the 8th not only predates Windsor, it came at a time when only one state had marriage equality (which was a very recent development). The legal landscape back then is now alien.
140. bythesea | January 1, 2014 at 2:50 pm

I hope it's not the Scopes Trial. The good guys lost that one actually. The victory was moral and manifested in the course history, but Scopes was convicted.
141. mtnbill | December 31, 2013 at 7:05 pm

Don't forget that looming ahead are trials in Michigan, and a decision already in Ohio (which may already indicate a much broader ruling than just what appears on a death certificate.) There is also a pending trial in the 9th Circuit (the Nevada Case) and well as developments in Oregon (which will recognize out of state marriages, but you can't get married in Oregon.)

The Court may just decide to let these various issues percolate for awhile before tackling the fundamental question of same sex marriage.

As the Ohio case pointed out, Ohio would recognize marriages performed elsewhere that did not meet Ohio law. Possible the same in Utah, you could get married elsewhere, but not in the state you live in–wouldn't be the first time as straight marriage requirements helped the marriage industry in Nevada not too many years ago compared to California. Just elope to Nevada and California would recognize the marriage.
142. davep | December 31, 2013 at 8:53 pm

Indeed. The wording in the Ohio ruling is VERY broad and clear, and it certainly isn't tailored to a narrow ruling that only addresses the specific circumstances of that case. The ruling is just as broad as all of the other cases that have overturned anti-SSM laws & amendments in California, New Jersey, New Mexico, and Utah. It seems to be a big 'green light' inviting couples in Ohio to apply for a marriage license, get denied, and file suit.
143. Dr. Z | December 31, 2013 at 9:20 pm

When I read the deputy AG's opinion recognizing out-of-state marriages in Oregon, it was very clearly influenced by the earlier ruling by this judge in Ohio.
144. grod | January 4, 2014 at 11:19 am

Reading Judge Black's decision conclusion # 1, pg 48, I concur. The right to remain marriage and to have valid marriage recognized is an aspect of the fundamental right to marriage and to choose where one resides.
145. Jim | December 31, 2013 at 7:14 pm

Deadline for lawyer RFP is Jan. 7. So sounds like the attorneys who filed for Supreme Court stay were placeholders.
146. StraightDave | December 31, 2013 at 7:40 pm

Yeah, and it looks like UT threw in the towel on the stay and just went with the low bidders – couple of BYU freshmen interns.
147. Dr. Z | December 31, 2013 at 7:53 pm

BYU yes, but no interns. As far as I've been able to glean thus far, Monte Stewart seems to be a longtime bag man/fixer for the Mormon Church.
148. Gary | December 31, 2013 at 7:48 pm

It can't be just me. Doesn't this whole stay request read like something written by a 10th grader trying to impress a teacher? There are more holes in this cheese than bees in balsawood.
149. StraightDave | December 31, 2013 at 8:19 pm

Trying to impress their LDS masters, who just lap this stuff up. They inhabit a world most of us don't recognize. The bigger they are, the harder they fall. (see Romney)
150. sfbob | December 31, 2013 at 10:42 pm

Someone on Daily Kos suggested it read like a press release rather than like a legal brief. I suppose either description would be just as appropriate.
151. Bruno71 | January 1, 2014 at 12:48 am

That would suggest to me that they feel they can at least get some mileage politically out of this, though likely not legally.
152. SoCal_Dave | December 31, 2013 at 8:53 pm

quoting…..
Utah argues that states have the right to limit marriage to different-sex couples if they believe that such partnerships are the optimal environment for childrearing. ”[M]aintaining the traditional definition of marriage,” the brief argues, “hold[s] up and encourage[s] man-woman unions as the preferred arrangement in which to raise children,” helping the state “increase the likelihood that any given child will in fact be raised in such an arrangement.”

Sorry I'm repeating myself but this insane argument keeps coming up. The state thinks it is justified in favoring the "optimal" environment for child rearing. But I'm sure we can find studies that show kids with rich parents are better off than kids with poor parents. Shouldn we outlaw "poor marriage"? What if we find children of one race fare worse than others? Should we outlaw "that race marriage"? If you are going to base marriage laws on "optimal" child rearing, doesn't it have to be consistent? Why is the gender of the parents the deciding factor and not their economic status or their race or some other factor? This whole "optimal" thing is such a blatant lying excuse.
153. Dr. Z | December 31, 2013 at 9:13 pm

There is a creepy Orwellian tone to their argument, it very much sounds like they are advocating active state intervention into the most personal decisions about reproduction and parenthood. Furthermore, they are arguing that the needs of potential children (or as they might term them, "preconceived children") actually are more important than the rights of living persons, even adopted children in same-sex families. It's like something out of The Handmaid's Tale, and if you think about it, it's a horrible precedent to set over and above the violation of the constitutional rights of LGBT. Once you permit the rights of "preconceived children" to become established it could open the door for some very strange rulings indeed.
154. ebohlman | January 1, 2014 at 3:33 pm

Only nitpick is that the tone seems more Huxleyan than Orwellian to me; I've always thought that Brave New World was both more frightening and more likely than 1984.
155. Dr. Z | January 1, 2014 at 3:57 pm

By Ford, I think you're onto something there.
156. sfbob | January 1, 2014 at 4:53 pm

I see what you did here. 🙂
157. Steve | January 2, 2014 at 5:56 am

And I thought the book turned completely silly when the normal people were Indian savages instead of just regular folks who lived like we do today.
158. davep | December 31, 2013 at 10:18 pm

Yeah, this is just another anti-SSM "argument" that is nothing more than thinly veiled anti-gay rhetoric that has already been brought up in more than one of these recent trials and has been resoundingly debunked each time, in exactly the way you describe, and the courts are already well aware of this. The state does not apply any of these types of eligibility tests for couples seeking a civil marriage, and for very good reasons, and the state has no interest in applying one based on this particular characteristic either. Lots of couples could be viewed as something other than optimal, based on a wide range of variables – income, health conditions, education level, you name it. None of that constitutes a valid reason to deny recognition of their right to civil marriage.
159. davep | December 31, 2013 at 10:23 pm

…. plus the fact that when you toss out the bullshit 'studies' from sources like Regnerus and go with legitimate research, all the evidence shows that kids raised by same sex couples do just as well as kids raised by opposite sex couples. Which pulls the rug out from under their "argument".

But even if it didn't, their argument wouldn't constitute a valid reason to deny recognition of marriage rights anyway. Denying marriage based on the notion that same sex parents are 'not optimal', while allowing all sorts of marriages that could just as easily be shown as 'not optimal', wouldn't pass any kind of scrutiny as a valid argument either.
160. Lymis | January 1, 2014 at 7:01 am

Even if the state had the right to set a bar for marriage like "optimal environment for childrearing" there are a couple of major considerations that would have to come into play.

They'd have to show that they've ever given the slightest consideration to such an optimal environment and barred anyone else from marrying because they would be bad parents. And taking away kids from demonstrably bad parents doesn't cut it – those people were allowed to be married, and unless states are doing things nobody has ever mentioned, even when children are taken away from parents, their marriages are not voided.

If the state policy is that the opposite sex marriages of people who have been deemed as specifically unfit to raise their own biological children don't get voided, they can hardly claim to preemptively bar all gay couples because of some nebulous concept of "optimal."

Second, of course, is that laws can be written about groups, but the apply to people. Even if a state has the right to decide that there is a minimum bar for optimal childrearing potential that must be met before a couple can marry, then that has to be applied equally.

You can't say that two lesbians with advanced degrees in child psychology, stable jobs, and a warm and loving home are inherently suboptimal for children and barred from marriage and not say the same thing about two meth addicts each on their third marriage, but that's what they're trying to do. To bar all same-sex couples from marriage, you have to prove that they are ALL worse than the worst of straight couples, not that they simply aren't the best.

Unless of course, you are going to declare a completely unrelated characteristic like sexual orientation or the gender of the partners as the sole characteristic that makes them unfit. But that fails as animus-based discrimination, and fails the "overly broad but overly narrow" that the Romer case failed on.
161. Dr. Z | January 1, 2014 at 8:43 am

To add to your point, one of the states in the upper Midwest (Minnesota or Wisconsin, I seem to remember) once tried to ban deadbeat dads from remarrying, and SCOTUS struck the law down. The social science research has certainly shown that behavior has been horrible for child welfare, and yet it's no barrier to marriage.
162. ebohlman | January 1, 2014 at 3:47 pm

It was Wisconsin; case was Zablocki v. Redhail.
163. Ali in Maryland | January 1, 2014 at 4:56 am

I recommend reading Jonathan Haidt's explanation of why people hold irrational moral values. His research shows that we are basically not that rational. We rationalize what we already believe in, and it's very difficult to change people's minds (morality, to be precise) by making logical arguments. In other words, you can make the best arguments in the world, and these people won't move an inch. They change their minds when they meet gay people and have personal experiences. Haidt says that the mind opens up and becomes ready to take in new ideas when the person feels "elevated", which the result of some emotional response.
164. Colleen | January 1, 2014 at 12:24 pm

Judge Shelby unambiguously addresses the canard of optimal child-rearing in Kitchen, saying that it's a matter of surrogacy and adoption law, not marriage.

So how does this work in appeals or requests for stay? Is Utah's team required to argue against the Judge's ruling and show why it is in error, or are they permitted to ignore everything that has gone before and start from square one? From what I've seen of their request to SCOTUS (and to be honest, I was not able to stomach reading much of it) it seems like they are going the latter route.
165. mtnbill | January 1, 2014 at 1:37 pm

Basically, at the appellate level, the legal arguments begin anew. Questions of fact are decided at the district court level, and are not reargued at the the appellate level (unless in some unusual circumstances).

Generally, at the appellate level, you argue questions of law. What precedents should be used. Did the judge's legal reasoning make sense. The Circuit court may agree with the decision, or may agree but with different legal reasoning, or it may disagree. There are 3 judges selected at random (at least at the 9th circuit, unsure of the 10th).

Since this case was not a full trial, but basically on the legal merits of the case, arguments begin again at the 10th circuit.
166. Mike in Baltimore | January 1, 2014 at 4:16 pm

At the Appeals Court level, the ONLY arguments that can be made is whether the District Court Judge erred.

You are correct in that facts are not argued at the Appeals Court level, but only in the sense that one side or the other can argue that the judge did not allow certain facts to be entered into – judicial error in not allowing those facts. The facts themselves cannot be argued at the Appeals Court level, but the case might be sent back to the District Court for those facts to be argued, if such is the decision of the Appeals Court.

So no, the case does NOT start anew at the Appeals Court level.
167. JustMe | January 2, 2014 at 8:42 am

This case was decided on summary judgment. Summary Judgments are reviewed DE NOVO at the appellate level. So yes, the case begins again.
168. JustMe | January 2, 2014 at 8:52 am

And that is why it will be reversed…

"More important for present purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."

Are you really going to say that a reasonable jury could not return a verdict for the state in this case?
169. Dr. Z | January 2, 2014 at 9:08 am

It was the State of Utah who requested a summary judgment in the first place. Now that the ruling has been issued, the state is howling that there wasn't a trial.
170. JustMe | January 2, 2014 at 9:18 am

Actually, it was the plaintiffs who elected to proceed on summary judgment.

"Minute Entry for proceedings held before Judge Robert J. Shelby: Status Conference held on 8/27/2013. The court hears from cnsl and sets the following dates/deadlines: 1. This case will first proceed with motions for summary judgment. 2. The court has provided Plaintiffs with the option of two briefing schedules, depending on whether Plaintiffs elect to file a motion for summary judgment. 3. Plaintiffs have elected to file a motion for summary judgment. 4. Therefore, motions for summary judgment, to be filed by any party, are due on or before October 11, 2013. 5. Any responses to motions for summary judgment, to be filed by any party, are due on or before November 22, 2013. 6. A hearing on all motions for summary judgment is set for December 4, 2013, at 10:00 a.m., in Room 220, before the Honorable Robert J. Shelby. 7. To the extent that the courts rulings on the motions for summary judgment are not dispositive, a status and scheduling conference is also set for January 7, 2014, at 10:00 a.m., in Room 220, before the Honorable Robert J. Shelby. ( Motion Hearing set for 12/4/2013 at 10:00 AM in Room 220 before Judge Robert J. Shelby.). Mr. Magleby will prepare and submit an order. Attorney for Plaintiff: James Magleby, Jennifer Parrish, Peggy Tomsic; Attorney for Defendant: Philip Lott, Stanford Purser – rep State dfts; Darcy Goddard, Ralph Chamness – rep Sherrie Swensen. Court Reporter: Ray Fenlon. (mjm) (Entered: 09/10/2013)"
171. Dr. Z | January 2, 2014 at 9:40 am

Both the plaintiffs and the state agreed to the motion for a summary judgment. The state lost, and now they're whining about it.
172. Dr. Z | January 2, 2014 at 11:10 am

The Governor of Utah filed his request for a summary judgment on October 11 2013, independent of the SJ request from the plaintiffs.
173. Kevin | January 2, 2014 at 10:18 am

The quote that you are referring to is about whether Summary Judgment ("SJ") is appropriate where there is a genuine dispute of material fact not about whether a trial judge was correct in his or her application of the law.

In other words, if a Plaintiff says that you did X and you say that you did Y, and the question of whether X or Y occurred (a dispute about a *fact*) would affect the outcome of the case (a *material* fact), then there is a genuine dispute of material fact that has to be heard by a jury. Because it has to go to a jury, SJ is inappropriate.

As has been pointed out below, opposition to the Motion for Summary Judgment was waived by Utah. Their argument therefore cannot be that SJ was inappropriate in and of itself (which is what the quote above refers to), but rather that SJ was appropriate *but* that it should have gone the other way.
174. JustMe | January 2, 2014 at 1:25 pm

Nice try to twist the standard… but that is not what the standard is.

A genuine dispute of material facts occurs when (in the summary judgment context) viewing the evidence in the light MOST FAVORABLE to the NON MOVING PARTY, a jury *COULD* return a verdict for the NON MOVING party.

The key thing to remember about the appeal (de novo) is that the 10th circuit panel is going to be viewing the evidence in FAVOR of the STATE (as the non-moving party), since the State's SJ motion was denied and the plaintiffs was granted.

BTW, Utah did not waive opposition to the summary judgment, they filed opposition on 11/22/2013 (doc. 84).
175. Dr. Z | January 2, 2014 at 1:52 pm

http://m.sltrib.com/sltrib/mobile3/56989161-219/s…

The state filed its own request for summary judgment in October.

You are the SHOE THROWER troll aren't you? Your tactics are identical: post a bunch of pointless legalese nonsense and hope it will scare people.
176. StraightDave | January 2, 2014 at 2:43 pm

What our troll forgets is that on appeal, the evidence won't be debated at all. The facts have already been established, or stipulated. All that's left to review is the judgment of law. The entire trial is not done over from scratch. That's not what de novo usually means. I believe (though IANAL), that what's happening here is de novo review, rather than trial de novo.
177. JustMe | January 2, 2014 at 3:39 pm

You're incorrect.

The evidence WILL BE debated. That's what DE NOVO means… just like the district court never rendered a judgment.

In de novo review of a summary judgment, the appellate gives no deference to the trial court, it's findings of fact, or anything else.

The appellate court will hear the case just as if the trial court had never heard it.

And here is what is being appealed:

IT IS ORDERED AND ADJUDGED
that judgment be entered in favor of the plaintiffs as follows: the court finds that the amendment known as Amendment 3 to Utah Constitution is unconstitutional because it denies the plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United
States Constitution. The State of Utah is enjoined from enforcing § 30-1-2 and § 30-1-4.1 of the Utah Code and Article I, §29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex.
178. StraightDave | January 2, 2014 at 8:25 pm

What evidence was debated in the district court, where the 2 parties held different views of the facts?

What findings of fact were made by Judge Shelby?

None, you say? None at all?
Well, I guess they'll do that "none" part all over again then, eh?
179. JustMe | January 3, 2014 at 1:47 am

Both parties submitted evidence as part of their summary judgment motions…

utah submitted 75 tabs worth (1500 pages) … The plaintiffs submitted none.
180. StraightDave | January 3, 2014 at 6:59 am

You didn't answer my questions.
181. StraightDave | January 3, 2014 at 7:01 am

Oh, and how do you reconcile
"Both parties submitted evidence "
and
"The plaintiffs submitted none"
??
182. JustMe | January 3, 2014 at 7:39 am

lol it was early in the morning and i just came home from work
183. Guest | January 4, 2014 at 1:10 pm

It's truly incredible that you keep going on and on about disputed facts, arguing that construction in the light of the non-moving party (who I guess here would be both parties, since both parties moved for SJ), when they are mentioned nowhere in either the motion for a stay or the opposition to the motion for a stay.

Pray tell, exactly what are the facts that the 10th cir. must so strictly construe in favor of the non-moving party that the lower court misconstrued that should have defeated a motion for summary judgment and necessitated a trial?
184. JustMe | January 2, 2014 at 4:01 pm

The reason is simple… the appellate court will be performing a constitutional function. That is a different kind of de novo review than an ordinary summary judgment.
185. StraightDave | January 3, 2014 at 7:05 am

Did you just stir your alphabet soup to come up with that one?
186. JustMe | January 3, 2014 at 7:41 am

No… its well know that appellate courts look at the situation much more stricly when they are looking at constitutional provisions (especially the federal judiciary ruling on state constitutions).

No question is more delicate than the relationship between the federal govt and the sovereign state
187. Guest | January 4, 2014 at 1:07 pm

I would like a citation for the proposition that "appellate courts look at the situation much more strictly when they are looking at constitutional provisions."

I am especially curious because "much more strictly" sounds like such a well-defined and eminently administrable standard that I'm sure the courts use often.
188. Guest | January 4, 2014 at 1:05 pm

Could you please provide us with your name a bar number please?
189. Craig Nelson | January 1, 2014 at 2:15 pm

I have now given in and read the document! I wish good luck to the team preparing their response that won't have had much of a New Year celebration. The stay request makes some interesting points which might well sway 4 justices, possibly 5 (it does all come down to Kennedy).

The point about state sovereignty is clearly pressed (clearly writing for Kennedy as well as the other 4 conservatives).

It totally loses coherence at the point of examining harms by saying that there is no harm in stopping same sex couples from marrying and terrible harm taking those benefits away at a later point, hence they need to be preserved by a stay. As others have pointed out, that makes no sense whatsoever on any level of analysis.

The whole concept of encouraging people to be heterosexual (or heterosexual and have children and marry) by denying same sex couples from marrying doesn't, on the face of it, make any sense either.

I hope the riposte is good and am sure it will be – I'm not sure they foresaw this going up to SCOTUS so soon (even if only as regards the stay).

I am kind of assuming this will go before the whole Court – one can never be sure though.
190. Zack12 | January 1, 2014 at 2:46 pm

The problem with the state's right theory with Kennedy (will be intresting to see how he rules) is that basically Utah is asking to do what the DOMA ruling said the Federal Government couldn't do,and that is be allowed to discriminate against same sex couples.
191. Craig Nelson | January 1, 2014 at 3:15 pm

The question is, has Kennedy resolved the conundrum in his head? I think he has because if he wanted a pure states' rights holding in Windsor he could have written it and could have decided Prop 8 differently but didn't. If he has then I think he'd be inclined to not grant a stay. Leaving it to percolate means trusting the Circuit of Appeals to manage the process otherwise we're just back to a blockbuster SCOTUS case as opposed to supposed 'percolation' – of course that is potentially where we are headed in any case.
192. Dr. Z | January 1, 2014 at 4:07 pm

If Kennedy didn't find the "state's rights" argument persuasive in Romer I doubt he will here either. CO2 was also passed by a majority of the voters, and the same arguments were advanced from 1992 until 1996 when SCOTUS struck it down. And that was when Bowers was still a binding precedent. There's even less justification now for the "state's rights" defense that Utah is invoking in Kitchen.
193. Zack12 | January 1, 2014 at 4:12 pm

While no one can know what is going on in his head,as Scalia wrote in his dissent,there is no way on earth Kennedy didn't know his ruling would be used to challenge state bans as well.
There was a lot of different things in that ruling but one thing was made clear,you can't target a group of couples and prohibit them from benefits on the federal level simply because you don't like them.
And if you can't do that on the federal level,hard to justify it at the state level.
194. Sagesse | January 1, 2014 at 4:51 pm

Windsor resolved that marriage and family law are for the states to decide, not the federal government.

Whether a particular marriage law, a state DOMA, violates 5th and 14th amendment rights is a separate, and federal, question, to be addressed another day.
195. Straight Dave | January 1, 2014 at 5:39 pm

, soon.
196. Lymis | January 2, 2014 at 9:05 am

I'd have to go back and read it, to decide whether I was seeing it in the text of Windsor or reading into it, but I came away with a sense that the Windsor decision laid out very clearly why there was no justification at the federal level for banning recognition, the states were required to establish their own, constitutionally valid justifications for the decision.

NOT that they were free to discriminate, but that their decision had to stand or fail on its own merits, and that it had better have damn good reasons to do so.

Whether ANY state can come up with such a justification remains to be seen.
197. StraightDave | January 2, 2014 at 9:40 am

Page 3 of the opinion:
'Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U.S. 1, "regulation of domestic relations" is "an area that has long been regarded as a virtually exclusive province of the States.'

It doesn't take much "reading into" to understand that the states are under some restrictions that are subject to federal court review.
198. Keith | January 2, 2014 at 9:40 am

This is just my opinion, but I don't see how individual state bans can ultimately survive in the long term, and perhaps even in the short term. How can a couple be legally married and recognized, and because of a job offer and move to another state, suddenly lose all legal recognition of the relationship. Ultimately, the U.S. Constitution will not allow for such disparities in comportment of a marriage license as married couples. I think ultimately we will see the destruction of Article II of DOMA in the next few years, and that whether a state is interested in issuing a marriage license, it will be forced to accept an out-of-state license as legally valid (thus effectively muting any marriage ban that exists within a state).
199. StraightDave | January 2, 2014 at 9:59 am

And it's not just marriages that are being affected. A few years ago a civil union couple in NJ was transferred to another branch office of the same company in Idaho. The company then revoked the partner's joint benefits because ID (as a State!) didn't recognize the CU. This was a private, not gov't, employer. As such, they were free to continue to offer benefits any way they liked, but chose to use the state as an excuse not to, even though that resulted in inconsistent rules within the same company that were not mandated by any law.
This crap will continue until all unequal treatment, on any pretext, is struck down cold. The 14th Amendment still has a long way to go.
200. StraightDave | January 2, 2014 at 10:29 am

Just for fun I decided to take a look at the only appellate success for denying SSM, Citizens for Equal Protection v. Bruning. (I meant modern, post-Baker)

The last page of the 8th Circuit's opinion looks frightening in retrospect. Chickenshit, is all I can say.

"This is not to say that courts should refuse to recognize a constitutional
right merely because to do so would make them unpopular.
Constitutional rights are, after all, rights against the democratic majority.
But public opinion is not irrelevant to the task of deciding whether a
constitutional right exists. . . . If it is truly a new right, as a right to
same-sex marriage would be . . . . [judges] will have to go beyond the
technical legal materials of decision and consider moral, political,
empirical, prudential, and institutional issues, including the public
acceptability of a decision recognizing the new right.
Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should
Decide?, 95 Mich. L. Rev. 1578, 1585 (1997)."
201. sfbob | January 2, 2014 at 2:05 pm

Cowardly and stupid ruling. Posner, though he occasionally does something right (perhaps, though even then generally for not very good reasons), is the source of any number of ideologically-driven decisions.

It appears in this case he has misconstrued the controversy as the the right to something called "homosexual marriage." This sort of logic was tossed in 1967 when the court in Loving rightly noted that the only right at issue was "marriage," not "interracial marriage."
202. Equality On TrialUtah sam&hellip | January 3, 2014 at 9:16 am

[…] their response to the state’s request for a stay. On Tuesday, state officials in Utah had asked the United States Supreme Court to put same-sex marriages on hold pending the outcome of their appeal to the Tenth Circuit Court of […]
203. Equality On TrialSupreme &hellip | January 6, 2014 at 7:51 am

[…] state hired outside counsel to write a request to the Supreme Court for an emergency stay. (The request was handled by attorney Monte Neil […]
204. Policy and Legal Update &&hellip | January 12, 2014 at 10:59 pm

[…] UTAH • UTAH – On 31 December 2013, in Kitchen, et al. v. Utah Attorney Governor Gary Herbert, et al., UT asked the U.S. Supreme Court to stay the original ruling and suspend same-gender civil marriages while appeals go through the U.S. Tenth Court of Appeals and the U.S. Supreme Court. A reply from the same-gender couples is expected on 3 January, with a decision on the stay request the following week. • MEUSA Summary • News Source […]
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