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Supreme Court puts same-sex marriages in Utah on hold pending Tenth Circuit appeal

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The Supreme Court has just granted Utah’s request to put same-sex marriages on hold pending the state’s appeal to the Tenth Circuit Court of Appeals. The order is here.

The latest action is the first time the Supreme Court has gotten involved in a same-sex marriage case since its decisions in United States v. Windsor and Hollingsworth v. Perry last June. While the Court sidestepped the issue of state same-sex marriage bans last Term, Section 3 of the federal Defense of Marriage Act (DOMA) was declared unconstitutional in a 5-4 vote. It was largely assumed that the Windsor decision would lead the Court to refuse to issue a stay in the case, since same-sex marriages have been going on for two weeks.

The Utah case, Kitchen v. Herbert, is currently on appeal to the Tenth Circuit Court of Appeals, and briefing is on a fast-track. The opening brief is due on January 27, and all briefs in the case will be filed by February 25, 2014. The date for oral arguments in the case has not yet been scheduled, but the Tenth Circuit’s website lists March 17-21 as the next argument session after all the briefs are filed.

State officials sought emergency intervention from the Court after a flurry of developments that began with a federal district court judge’s decision holding that Utah’s same-sex marriage ban is unconstitutional, based in part on the Windsor opinion itself; the Utah decision came down on December 20. The state immediately filed its notice of appeal to the Tenth Circuit Court of Appeals, and simultaneously formally asked the district court to halt its decision allowing same-sex couples to immediately marry in Utah. The state had failed to pre-emptively ask the judge to stay any eventual ruling that would strike down the marriage ban, even though the request had been standard in these challenges.

Given the delay between the time the initial decision came down and the state’s request to stay the district court order, some, and eventually all, counties in Utah began issuing marriage licenses to same-sex couples. According to some reports, records were shattered, with counties issuing over a thousand marriage licenses by December 26.

The state also filed an emergency request with the Tenth Circuit to put a hold on marriages until the district court could hold a hearing on the stay request, since federal court rules require the district court to grant or deny a stay before an appeals court can decide to grant a permanent stay.

The next day, December 21, Judge Shelby, the district court judge who ruled in favor of same-sex couples in Utah, announced that a hearing would be held the following day on the state’s request for a stay. Then, the Tenth Circuit declined to issue an emergency stay, instead deciding to wait on the district court to issue a ruling on the stay request. The district court declined to halt same-sex marriages pending the appeal of the case on the merits, and that was followed up by a Tenth Circuit ruling which also declined to stay the order.

The state hired outside counsel to write a request to the Supreme Court for an emergency stay. (The request was handled by attorney Monte Neil Stewart.) An application like this goes first to the Circuit Justice for whatever Circuit Court the request is filed in. In this case, Utah is within the Tenth Circuit, and the Circuit Justice is Justice Sotomayor. The plaintiffs were allowed until last Friday, January 3, to respond to the request. The same-sex couples asked the Court not to stay the ruling, based on the lack of irreparable harm to the state and the fact that the circumstances in this case aren’t unusual enough to warrant the Supreme Court’s intervention.

The state’s reply brief, filed this morning, argues that Windsor doesn’t provide a reason to deny a stay, because according to the state’s reading, the Windsor opinion was based on federalism principles. The state suggests that the Court would eventually review the Tenth Circuit’s decision, and a majority would vote to uphold Utah’s same-sex marriage ban. Those factors, they write, should lead the Court to issue a stay pending completion of the appeals process.

The eventual final ruling on the merits by the Tenth Circuit Court of Appeals may not be the last word: the losing party can petition the Supreme Court to review the Tenth Circuit’s decision. It’s anyone’s guess whether the Court would want to take up another same-sex marriage case so soon after deciding Perry, the Prop 8 case, on the narrow issue of Article III standing, and opting to issue a ruling on the merits only on the Windsor case. The Court could simply deny review, ending the challenge at the appeals court level. If the Tenth Circuit’s ruling comes down fairly quickly after the case is argued, the Court would decide whether to hear it during the Term that begins in October of this year.

Thanks to Kathleen Perrin for these filings


  • 1. Fan  |  January 6, 2014 at 8:06 am

    This is a little surprising and very disappointing!

  • 2. palerobber  |  January 6, 2014 at 9:32 am

    possible silver lining is that the state will take this as a sign that the lawyers who put together this POS are doing a cracker jack job and they don't need to find anyone better.

  • 3. grod  |  January 6, 2014 at 9:47 am

    In reading this blog all weekend, there was no mention that the State would likely be submitting a Reply to Magleby’s Jan 3 memorandum (Kitchen vs Herbert). In the State’s Rely submitted this am by Brian Tarbet, it made a number of claims at law, challenging the positions taken by Magleby. One would need to be a constitutional lawyer to evaluate the state's rejoinder but it 'appeared' substantive. However had not the State originally sought a stay until the Supreme Court decided the case on its merits – should Utah fail on appeal – as occurred in Hollingsworth vs Perry. Did not the Court [rather than Justice Sotomayor] take a middle-of-the-road position by imposing a stay until the Appeals Court made a determination on its merits. By this am, how many marriages had occurred in Utah?

  • 4. palerobber  |  January 6, 2014 at 10:25 am

    if it wasn't mentioned all weekend it's because the AG's office only submitted their reply this morning (according to Reyes in press conference today).

  • 5. Pat  |  January 6, 2014 at 1:42 pm

    I guess grod meant that we didn't know that the state was still expected to submit a reply. I also thought that Sotomayor might issue a decision at any moment after Friday's paintiff's response. But apparently SCOTUS was still expected for further replies from the state?

  • 6. palerobber  |  January 6, 2014 at 10:29 pm

    you're right — I misread grod's comment.

  • 7. Sean from NJ  |  January 6, 2014 at 8:07 am

    Well, this sucks but it's not unexpected. I always thought there was a little too much optimism and "group thought" here on this matter – poorly written briefs or not. This just goes to show that once again there is no predicting exactly what the Supreme Court will do.

  • 8. Scottie Thomaston  |  January 6, 2014 at 8:09 am

    To be fair, a lot of legal observers got this wrong. It definitely wasn't just here or even just LGBT people. I'm actually surprised at how many people predicted it wrong.

  • 9. Dr. Z  |  January 6, 2014 at 9:16 am

    Our side had much the stronger case according to the "official" criteria for a stay. However when it comes to gay rights the courts have had a long history of…shall we say, "unofficial" or unwritten rules, hense the lack of explanation. My guess is that SCOTUS thought events were unfolding too fast and they wanted to slow things down. Very disappointing.

  • 10. RAJ  |  January 6, 2014 at 9:36 am

    Dr. Z,

    I absolutely agree with this. If the acting AG for Utah had not been so inept at the outset, events might have played out differently. Very disappointing, of course, but maybe SCOTUS is slowing down the action — hopefully, for a later larger win.

  • 11. Anthony  |  January 6, 2014 at 9:39 am

    It's because it's a societal shift in beliefs. People didn't realize how many people were gay so now all those horrible anti gay laws that were passed way back when are going to have to be struck down.

  • 12. Ian S.  |  January 6, 2014 at 8:28 am

    Sorry if this is obvious – but what happens to those already married?

  • 13. Scottie Thomaston  |  January 6, 2014 at 8:34 am

    It's not especially obvious, actually. It's sort of a grey area. The stay itself doesn't have any effect on existing marriages, and it doesn't seem like a decision by the Tenth Circuit upholding the ban would impact existing marriages performed under a legitimate federal court order, but it's a really weird situation.

    Anyway, the short answer is: right now, at least, nothing changes. They're still legally married. Just more people can't get married now.

  • 14. Rose  |  January 6, 2014 at 9:01 am

    Hi Scottie…….my understanding is that the legal marriages that have taken place will more than likely remain legal just like the 18,000 legal marriages that took place before the passage of Prop 8.

    To nullify those 900 plus marriages would truly be an injustice and IF that should happen the couples should sue the hell out of the State, besides……NO State has won regarding this issue!!!

  • 15. Lymis  |  January 6, 2014 at 10:11 am

    However, remember that, just like for a lot of us elsewhere in the country, there's a distinction between "legal" and "recognized by the state."

    It's entirely possible that Utah will choose not to recognize any of these newly minted marriages for any state purposes. I can't imagine that won't be their official policy unless they are forced to do otherwise.

    The question of federal recognition is different. It's hard to imagine that the feds won't recognize them and keep on recognizing them, even if the case loses on appeal.

  • 16. Paul S  |  January 6, 2014 at 1:58 pm

    A state refusing to recognize their own marriages is pretty absurd.

  • 17. StraightDave  |  January 6, 2014 at 6:04 pm

    Yeah, and it's Utah. So?
    I'm sure somebody will try, but the new AG Reyes at least looked to have a cool hand on the situation and not overreact.

  • 18. Richard Weatherwax  |  January 6, 2014 at 9:19 am

    My question is: What happens to those who already have marriage licenses, but have not gotten married yet? If they get married now, will that marriage be recognized? Of so, When?

  • 19. grod  |  January 6, 2014 at 9:58 am

    Its my understanding to have a valid marriage, you not only need a license, need to be married but you need to submit to the state evidence of the marriage having occurred. Hopefully all who were married submitted the prescribed evidence to the state. In the State's reply – to the USA Supremes – this am "each new marriage" is an affront to the State. If so, assume state officials will follow the letter of the law. Yuck!

  • 20. grod  |  January 6, 2014 at 1:29 pm

    Salt Lake Tribune: "Michael Braxton, who legally performed a marriage for a same-sex couple Saturday, was able to register the marriage certificate Monday shortly after the stay. Because the marriage took place before the stay, the clerk’s office (Salt Lake Country) recorded it".

  • 21. Dann  |  January 6, 2014 at 8:29 am

    I know that in the end justice will prevail and we'll have ME nation wide. Still today's decision is very sad and just plain wrong.

  • 22. Rose  |  January 6, 2014 at 8:29 am

    This is TERRIBLE news and I still DON'T believe the State will win and NOTHING will change the legal marriages that have already taken place!!!

  • 23. palerobber  |  January 6, 2014 at 8:50 am

    next question:
    does the fact that 10th circuit declined to stay the district court ruling tell us anything about the likelihood that they will stay their own ruling on the appeal (assuming they uphold)?

  • 24. palerobber  |  January 6, 2014 at 8:53 am

    come to think of it, it hardly matters since SCOTUS will be there to stay it again if asked.

  • 25. Dr. Z  |  January 6, 2014 at 9:07 am

    If the 10th decides in our favor and SCOTUS grants cert for an appeal, my guess at this point is that SCOTUS will stay the ruling until they can hear the case.

    If we win at the 10th and SCOTUS denies cert the stay would be lifted.

    If we lose at the 10th there would be no need for a stay pending review by SCOTUS.

  • 26. Mike in Baltimore  |  January 6, 2014 at 10:24 am

    The ruling by SCOTUS on the stay is ONLY to a decision by the 10th Circuit Court. That means, if the state appeals the case to SCOTUS (which would happen if the 10th Circuit agrees with the District Court), a new stay request would have to be filed.

    I think the stay going ONLY to the decision by the Circuit Court in many ways indicates a belief by SCOTUS that the 10th Circuit Court will NOT overturn the District Court, and even if appealed to SCOTUS, either SCOTUS will deny cert, or find a way to dismiss the case (ala Prop H8).

  • 27. Valquiria  |  January 6, 2014 at 8:50 am

    If they granted a stay, it means they believe at least part of Utah's ridiculous argument. Right?

  • 28. Keith  |  January 6, 2014 at 8:54 am

    No it doesn't. For a good read see this

  • 29. Valquiria  |  January 6, 2014 at 9:10 am

    "Since the Monday order provided no explanation, it was not clear which of the arguments made by state officials had been convincing to the Justices. "

    That seems to imply that at least one of those arguments was deemed convincing, or at least convincing enough to serve as a pretext for kowtowing to bigotry for no good reason.

  • 30. Richard Weatherwax  |  January 6, 2014 at 9:29 am

    There are several possibilities. The Court would want to keep from tipping their hand, the best way to do this would be to issue an unsigned stay. Technically, it does not reflect the opinion of any justice. A stay is less controversial because it maintains the status quo as it was before the district courts decision. It could also be the case that Scalia would not agree to an unsigned order which permitted same-sex marriage to continue.

  • 31. Dr. Z  |  January 6, 2014 at 10:32 am

    They may have felt that in the event of a state law or state constitutional provision conflicting with the US constitution, it is the prerogative of SCOTUS to make that determination and nothing is final until they do. That is the strongest point the state made in their stay request.

  • 32. Sagesse  |  January 6, 2014 at 9:23 am

    It could be that the federalism question is still open, and they want to have an opportunity for it to be reviewed, at the 10th Circuit at least. That's the one valid argument that is not discriminatory on its face, and it was an important part of Windsor.

  • 33. Anthony  |  January 6, 2014 at 8:53 am

    What is the point of them doing this? Stop playing games with people's lives!

  • 34. Rose  |  January 6, 2014 at 9:07 am

    Exactly, but the ANTI-GAY BIGOTS can't seem to let this issue go and just move on…….in the end, the State will probably lose and it is possible that if SCOTUS takes up this appeal next term, could put an end to this game once and for all…….I mean a FUNDAMENTAL RIGHT to marry should be EXACTLY that regardless of the gender one wants to marry!!!

  • 35. Keith  |  January 6, 2014 at 9:29 am

    I think we should be cautious in assuming that the State will lose. I also want to say that election results on both the State and Federal levels have serious consequences. which is why we have so many states with state constitutional bans on same sex marriage and no anti-discrimination laws. If every one in their own state would come and cast their vote for the right candidates in upcoming state government elections, midterms AND in the 2016 presidential election we might very easily win these battles.

  • 36. Mackenzie  |  January 6, 2014 at 8:56 am

    I believe that the SCOTUS probably granted a stay in the interest of "The Greater Good". Don't get me wrong, I think it was incorrect to allow the stay to be granted. However, we are talking semantics here. Our side of the argument just got a big, if not the biggest win we could have hoped for getting marriage equality in one of the most conservative, Mormon-dominated states in the country. The point of a stay is to prevent the actions of a lower court going into effect before the losing party has a chance to appeal. Similar to Prop 8, or Windsor v Perry, there is plenty of reason to believe that a SCOTUS, who most also think about popular opinion, would not slow this case down. It knows it will likely be appealed to its Court in the near future as the lack to grant a stay from the 10th Circuit is highly indicative to me of a favorable outcome for us in next round. Not knowing fully the reason for granting the stay, it is safe to assume that the SCOTUS wants to appear as though it is being even handed towards conservative groups in addressing this issue. The only real claim the power the Judicial Branch has is the respect and prestige it holds. It is only by tradition that losing parties go on to accept the decision of the SCOTUS as valid. They must keep this in mind when deciding a case that will likely have implications that affect the entire country this go-around.

  • 37. Mackenzie  |  January 6, 2014 at 8:59 am

    Also a question that I had but never saw an answer to: If the full bench of the Supreme Court decides on the issue of a stay, how many Justices are required for it to go into effect? Is it similar to the rule that only for Justices are required to get a case heard?

  • 38. Ryan K.  |  January 6, 2014 at 4:53 pm

    Majority is required to order the application for a stay to be granted. So you need at least 5 votes (assuming all 9 participated). The "four" votes is for granting a writ of certiorari to accept to hear a case.

  • 39. JustMe  |  January 6, 2014 at 5:12 pm

    The stay was unanimous by the Supreme Court.

  • 40. Drpatrick1  |  January 6, 2014 at 6:41 pm

    There is no evidence of this.

  • 41. jpmassar  |  January 6, 2014 at 9:09 am

    So people who got married are still married, but what about legally married couples from out of state who now reside in Utah? Are they still recognized as married in Utah? Seems likely Utah would claim that they aren't, perhaps that they should have gotten married while they had the chance. Which would set up another legal challenge.

    And what if you got married during the time window same-sex marriage was legal in Utah in, say, California, and are now in the process of moving to Utah?

  • 42. davep  |  January 6, 2014 at 9:44 am

    …except that those couples would not have been ALLOWED to get married a second time during the recent window because they were already legally married. Catch 22. Bah!

  • 43. Gregory in SLC  |  January 6, 2014 at 9:55 am

    yes, that.

  • 44. grod  |  January 6, 2014 at 10:14 am

    jpmassar: I would read this to stay Shelby's ruling in whole. The state said each marriage was an affront to the state. Your moving to Utah, your out-of-state marriage remains that. I do not know what is required for straights to assert their right to have their out of state marriage recognized in Utah. But whatever that is – needed to be done by those non-straight residents of Utah before today. IMO

  • 45. SoCal_Dave  |  January 6, 2014 at 11:13 am

    I don't think straight couples have to do anything about their marriage when they move from state to state. It's not like a driver license that has to be re-issued by your new state.
    No legal training, but I've just never heard of people having to do anything like that.

  • 46. Bruno71  |  January 6, 2014 at 11:16 am

    In the past 2 weeks, Utah was undoubtedly forced to recognize same-gender out of state marriages. They will now likely cease to recognize those. Marriages performed within Utah may be more unclear…perhaps they will say they were validly entered into, and other states may recognize them, but Utah itself will cease to recognize them starting today.

  • 47. JustMe  |  January 6, 2014 at 5:13 pm

    When you move to a new state, you are required by most state laws to get a new drivers license within 30 days.

  • 48. SoCal_Dave  |  January 6, 2014 at 6:43 pm

    Right, that's what I was saying. Driver license must be re-issued. But marriage license? Never heard of having to "re-register" or do any kind of notification when you move to another state.
    (But just because I never heard of it, doesn't mean it doesn't happen)

  • 49. MightyAcorn  |  January 6, 2014 at 8:45 pm

    The Full Faith and Credit Clause of the Constitution assures straight people that their marriages will be recognized across state lines(with a few possible-but-usually-unenforced exceptions like cousin marriage.) DOMA carved out a stated exception to this clause for same-sex marriages–just one more way state bans are encouraged and enforced. That's why finally getting rid of DOMA Section 2 is important, though I'm sure some states (*looking at you, Alabama*)
    will still argue States Rights should prevail even after it's gone.

  • 50. Dr. Z  |  January 6, 2014 at 7:09 pm

    There is no requirement to get remarried in a new state. That was the point of the Ohio ruling, that the right to remain married is a fundamental right.

  • 51. StraightDave  |  January 6, 2014 at 6:19 pm

    I seem to recall CA passed a law post Prop-8 that recognized out-of-state marriages that were performed during the same 5-month time period when they would have been legal in CA. The rationale was something like this: these couples may have gotten married elsewhere in the expectation that they might move to CA someday because they would be recognized there. If they did end up moving to CA, that justifiable expectation would have to be met. It was a fair and honorable thing for the state to do, and can serve as a precedent for UT. Not that they would gladly do so, but a court might make them.

  • 52. Nyx  |  January 6, 2014 at 6:55 pm

    SD or anyone else please correct me if I'm wrong, but it was all couples who were legally married any time prior to the passage of Prop-8. Of course, as long as it was legal in the jurisdiction the marriage was held.

  • 53. Dr. Z  |  January 6, 2014 at 7:07 pm

    Yes that's correct. After our Oregon marriage was invalidated we got remarried in Vancouver CA – and we were considered married in CA even after Prop H8 passed.

  • 54. Richard Weatherwax  |  January 6, 2014 at 9:13 am

    Notice that the order is unsigned, which means that it was unanimous or a compromise designed so as not to tip the Courts hand. A stay is the usual course for the court to take in cases which makes a drastic change in the status quo, therefore, a stay ls less likely to tip off the courts hand.

    I was hoping for too much, but inside knew that it had to be a unanimous stay to keep the court from tipping their hand.

  • 55. Dann  |  January 6, 2014 at 2:53 pm

    I saw on CNN that the decision was unanimous by the SCOTUS. Could CNN be wrong?

  • 56. Bruno71  |  January 6, 2014 at 2:54 pm

    They're probably not wrong. Remember, this is a procedural question, not a gay marriage question per se.

  • 57. Mahnahvu  |  January 6, 2014 at 9:25 am

    So how should the couples file their Utah taxes?

  • 58. palerobber  |  January 6, 2014 at 9:37 am

    from the SLTrib:
    "Utah Attorney General Sean Reyes has scheduled a press conference for 11 a.m. to discuss what the stay order means for the state."

    hopefully we'll learn then whether or not the state plans to honor those legal marriages that the state itself licensed.

  • 59. palerobber  |  January 6, 2014 at 9:49 am

    btw, presser to be carried live here:

  • 60. palerobber  |  January 6, 2014 at 10:05 am

    first question of the presser is about status of the existing marriages.

    AG Reyes:
    "We don't know"

  • 61. palerobber  |  January 6, 2014 at 10:09 am

    apparenly governor's office is saying the same: we're looking into it.

  • 62. grod  |  January 6, 2014 at 10:26 am

    If the state thought this was the expected outcome what would they not know. Again the AG office looks unprepared.

  • 63. palerobber  |  January 6, 2014 at 10:45 am

    perhaps, but this could also be posturing — using their "confusion" to slow-play and to cast Shelby's decision as ill considered.

  • 64. Paul S  |  January 6, 2014 at 4:32 pm

    Don't you think he should have known the effect of the stay that he requested of the Supreme Court BEFORE he requested it?????

  • 65. palerobber  |  January 6, 2014 at 10:12 am

    they ended the press conference after just 3 questions (and the first 2 questions were the same), so it seems the whole point of calling it was so Reyes could say he doesn't know what to do about the existing marriages and repeatedly blame Shelby for the "confusion."

  • 66. GregG  |  January 6, 2014 at 9:45 am

    I think the bigger question may be: how should the couples file their US taxes?

    I would expect Utah to say the marriages aren't (yet) valid, so that both couples
    who got married in Utah and those Utah couples who had been married in other
    states would file their state taxes as single. If/When Utah loses their case, they
    could go back and file amended returns.

    I guess the question that SCOTUS left unanswered is whether the marriages
    are recognized under federal law. It may be that couples who were married in
    other states and who now live in Utah would be treated differently than couples who
    were married in Utah with respect to Federal taxes.

  • 67. Lymis  |  January 6, 2014 at 10:19 am

    People who are validly married and live in states that don't recognize them can file federal taxes as married. Why wouldn't that apply to Utahans as well?

    This may be one of those legal fiction things (like the guy who was convicted of taking the bribe the other guy was acquitted of offering), where the federal government recognizes it as valid but Utah doesn't have to.

    The marriage was legally valid when it was contracted.

  • 68. Karlschneider  |  January 6, 2014 at 1:15 pm

    I grok that. 🙂

  • 69. Eric  |  January 6, 2014 at 12:17 pm

    File the way the state says to. Then when the situation resolves itself, file an amended return. My 2009-2012 state and federal returns have each been amended at least twice now because of DOMA.

  • 70. Straight Ally #3008  |  January 6, 2014 at 9:33 am

    To be honest, I was worried when Rachel Maddow reported that normally, a stay would have been issued from the beginning, preventing the 900+ couples from ever being married in the first place, but the Utah AG's office completely screwed up and didn't file a request for stay on time. Just as a matter of jurisprudence, it sounds like SCOTUS may have had no choice but to grant the stay and attempt to correct the AG's bungling. Scottie et al, what say you?

  • 71. Zack12  |  January 6, 2014 at 9:45 am

    I agree. Let's face it,a normal course of action would have been for the judge's ruling to be stayed pending appeal.
    The state simply forgot to do the step and bungled the appeals to the 10th circuit as well.

  • 72. Bruno71  |  January 6, 2014 at 9:45 am

    I think SCOTUS is sending a message that justices where the lower court rules in our favor in the future should by default impose a stay pending appeal. They don't want the law on the ground altered until the matter is properly adjudicated, including appeals.

  • 73. Jack  |  January 6, 2014 at 9:56 am

    Maybe — but maybe a message, also, to those defending anti-ME laws, that unlike the Utah AG office, they need to do their homework properly in requesting a stay. SCOTUS may get tired of pulling their bacon out of the fire if they keep screwing up

  • 74. Bruno71  |  January 6, 2014 at 10:08 am

    Well, I'm sure SCOTUS thinks that too. But I'd have been surprised in any case if another state AG screwed up like that in the future. That was a rarity.

  • 75. Carol  |  January 6, 2014 at 10:41 am

    Good point, because Sotomayor could have granted the stay without asking for briefing. The fact that the stay came after the weekend suggests to me that she and at least some of her colleagues thought and talked about what they should do.

  • 76. Miss Hannigan  |  January 6, 2014 at 4:42 pm

    Yup n smokin a big ol fattie. Token it up dawg!

  • 77. Fluffyskunk  |  January 6, 2014 at 8:03 pm

    They don't want the law on the ground altered until the matter is properly adjudicated – when there has been a decision granting rights to Teh Gheys, at any rate. It's all about keeping Teh Gheys from getting all uppity and assuming we're somehow inherently entitled to constitutional rights, like real people.

    Make no mistake, if it had been about anyone else's right to marry there would have been no stay.

  • 78. Dr. Z  |  January 6, 2014 at 8:18 pm

    I think they want to control the timing of what happens when. It's all about SCOTUS – they are interested in the case and the law. I'm not sure how much the parties to the case enter into their considerations unless the parties to the case are powerful entities like a State or the Congress or the President. It's sort of like when a doctor regards you as an interesting disease with a person attached.

  • 79. Craig Nelson  |  January 6, 2014 at 9:35 am

    Marriage equality is here to stay and SCOTUS knows this. If the stay was unanimous it means that the Chief Justice or someone else was able to craft a commonality of view. We may never know of course. Disappointing and a temporary setback but in and of itself doesn't say anything about the final outcome.

  • 80. Lymis  |  January 6, 2014 at 10:24 am

    That's a lovely idea, but it may not be true. Some of them may have wanted a stay because they oppose same-sex marriage. Some of them may have wanted a stay because they support it, but don't want to impose it on the other states in the circuit without a clear set of rulings, and that the current limbo could be seen as precedent in the rest of the Circuit. Others may have wanted a stay because they support same-sex marriage but don't want the confusion and backlash that not having a stay would cause – stays have always been "the way it's done" and they didn't want this to be tainted by implications of judicial activism.

    We know, for example, that Ginsburg is okay, even supportive of gay marriage, but her comments about how Roe was decided make it clear she likes clear and decisive rulings. She may have voted for a stay to keep things tidy and less "activist-y."

    All we know is that enough of them agreed to a stay. We really don't know whether they agreed on why it should be stayed.

  • 81. Jack  |  January 6, 2014 at 10:38 am

    I think it very doubtful that they agreed on why it should be stayed. All of the possibilities you named may well be in play — and yet more. We'll only get some clarity on that when (as, eventually, they must) SCOTUS hears this or another similar case on the merits.

  • 82. Bruno71  |  January 6, 2014 at 10:45 am

    I wouldn't necessarily say it's very doubtful. It's quite possible that both pro-equality and anti-equality justices agreed that a stay should be imposed based on the same procedural reasoning. It's quite possible that's not the case, too.

  • 83. grod  |  January 6, 2014 at 1:14 pm

    Hopefully it was not because of the argument that Baker is the guiding precedent in the lower courts until the Supremes say otherwise. .

  • 84. Dr. Z  |  January 6, 2014 at 5:25 pm

    Frankly I doubt any of the State's arguments were persuasive. I suspect SCOTUS issued the stay for reasons of their own. Had they denied the stay there would very shortly be SSMs happening in nearly every state, complicating the "are these marriages valid" question a hundred fold and boxing SCOTUS in when they finally do hear the case. The SCOTUS didn't do this for Utah. They did it for themselves.

  • 85. Chris M.  |  January 6, 2014 at 5:35 pm

    Agreed. That decision was not governed by convincing arguments on the established criteria for a stay. This was to maintain the greatest flexibility for them in the future, and to slow down the creation of facts on the ground. Selfish of them to put their convenience over the lives of hundreds of thousands of families, but they reign supreme and can do whatever they please.

  • 86. Eric  |  January 6, 2014 at 5:37 pm

    One of the plaintiffs is a same-sex couple married out of state. Baker does address, nor even apply to that scenario.

  • 87. Rose  |  January 6, 2014 at 10:32 am

    My question is this…….are the legal marriages of these couples nullified or void by this Stay? I don't believe they are, but some think they might be!!!

  • 88. Bruno71  |  January 6, 2014 at 10:42 am

    There is no definitive answer to this yet, it's uncharted territory. Unlike in California, there's even a question whether or not these marriages legally took place at all. Let's recall that even Ken Starr didn't think that prop 8 nullified the California marriages (just that they would "cease to be recognized").

    So the first thing we need to look for is how the Utah AG interprets the marriages. While we might tend to assume the Utah government will do anything in its power to declare them null and void, they may not do so depending on how they think the courts will interpret the recognition or non-recognition of those marriages. We'll have to see.

    Then, depending on how married couples want to address the issue, we may see some specific cases in state and federal courts very soon regarding the validity of the marriages. It's anybody's guess how it plays out there, but they may decide to validate or invalidate (or more precisely "put on hold") the marriages, pending decisions from the 10th and possibly SCOTUS.

  • 89. Straight Ally #3008  |  January 6, 2014 at 11:06 am

    It's the AG's blunder that the stay wasn't issued in the first place, so they should accept the consequences and allow the 900+ couples full state and federal (as per Windsor) marriage benefits. If they really want to nullify marriages, I think the outcry will come back to bite them in the tuchus.

  • 90. sfbob  |  January 6, 2014 at 2:15 pm

    I'd have to say that any attempt to nullify the marriages that have already taken place would generate additional court cases. The situation is quite different from what happened in California in 2004, where all of the marriages performed in SF were ruled invalid because the mayor lacked legal authority to authorize them in the first place. In this instance we're dealing with a legal proceeding. As of the time the marriages were solemnized, the controlling court ruling had neither been overturned nor stayed.

  • 91. mtnbill  |  January 6, 2014 at 3:01 pm

    I'm trying to set aside the Utah marriages as a symbol, and look at the issue from a couple's legal view–back to real world where one tries to reduce uncertainty in the future, regardless of what plays out in the state.

    If the couples want to make sure they have a valid marriage, they could have the marriage done again in another state (just to be sure for federal benefits in the future if Utah does succeed in nullifying the marriages performed by Utah officials).

    My guess is that Utah will want to declare the marriages null and void from a state perspective given the Mormon influence in the state and upon its office holders. From a state perspective, these marriages sully the state, and as its lawyers have stated an affront to its good citizens. From the couples' perspective, they may want to make sure by having another ceremony where same sex marriage is legal. Income taxes are the first thing for most of them, as those will be due by April 15, by which time the 10th Circuit will still be writing its decision.

    However, as in California, couples may want to make a statement–its a Utah marriage or nothing. While the California marriage cases were being decided, couples who were facing legal issues should have gone ahead with a civil union. But for many, marriage was a symbol. It was to be all or nothing.

  • 92. mtnbill  |  January 6, 2014 at 4:14 pm

    I realized that for income taxes, only those marriages which took place in 2013 would be affected for income tax filing in April 2014.

  • 93. Paul S  |  January 6, 2014 at 4:29 pm

    I do not believe that there is any legal way for the state to claim that the marriages are null and void. The marriage licenses were issued when there was a federal court injuntion against the state. The stay of the decision by the Supreme Court doens't affect the fact that the marriages were issued.

    The state could refuse to recognize the marriages, as they do all other "same sex marriages". It's fairly ridiculous for them to refuse to recognize marriages that were issued by themselves, but if that's the case they want to make – more power to them. I think it actually makes them look more ridiculous.

  • 94. grod  |  January 6, 2014 at 5:43 pm

    Paul: Refusal to recognize these marriages will be noticed by the court of appeal. G

  • 95. StraightDave  |  January 6, 2014 at 6:32 pm

    Can you smell animus in the air?

  • 96. JustMe  |  January 7, 2014 at 9:02 am

    If the district court is reversed… those marriage would be null and void. When a judgment is reversed by the court of appeals (or scotus) its just as if that injunction never existed.

  • 97. Eric  |  January 7, 2014 at 10:29 am

    Could you please cite some marriage cases to support your claim?

  • 98. Michael  |  January 6, 2014 at 2:46 pm

    Makes no sense to me since the state is not being harmed. But we all know there will be temporary setbacks on the road to full equality. There is no doubt we will reach the goal soon.

  • 99. Carol  |  January 6, 2014 at 3:46 pm

    If the marriages are declared invalid, wouldn't the state have to return the license fees to 950 couples?

  • 100. Dr. Z  |  January 6, 2014 at 5:17 pm

    Yes. I remember when Oregon returned our license fee, we didn't cash the check for a long time. Doing so made it feel like we were being made an accomplice to our own injury. 🙁

  • 101. Bill  |  January 6, 2014 at 6:55 pm

    Is anyone aware of a blog where legal minds on the other side are analyzing this decision and similar issues? Our interpretations differ, we all agree on what we want to happen. I'd like to read opposing analysis.

  • 102. bythesea  |  January 7, 2014 at 10:50 am

    There really doesn't seem to be, but if you find such do let us know.

  • 103. grod  |  January 7, 2014 at 6:38 pm

    IMO Magleby would have been pleased to have their opponent best argument asserted in the Jan 6 Reply brief by the state's new lawyers. Magleby's assertion – placed before the Supremes on Jan 3 – were also challenge . He now knows the contours and nuances of his opponent's position.

  • 104. Jack  |  January 7, 2014 at 6:55 pm

    Magleby et. al have done a great job, but I hope if this goes to SCOTUS (and maybe even for the 10th Circuit) they get additional help from lawyers who have major appellate experience — say Boies and Olson of Prop 8 fame whom, one hopes, would do this pro bono. Utah's legal work was improved by outside counsel (true — there was no place to go but up from where they started); why not our side, too?

  • 105. Josh  |  January 7, 2014 at 6:57 pm

    Well this ticks me off. Glad I didn't read it yesterday. This was supposed to be an easy NO to the stay request since it had been denied a few times previously. I guess that logic was wrong. I'll have to read more to see what the reasoning was unless someone wants to clue me in quickly.

  • 106. Lyle  |  January 7, 2014 at 8:01 pm

    well everyone join forces and meet at the state capitol on the 28th of january from 5-8 pm we are getting out and letting the governor know that this is a waist of taxpayers dollars and we want him to stop the fight and let equality stand in this state and put that money to work else where things such as homelessness and or education! hope everyone that reads this shows up at the capitol with friends and family in tow!

  • 107. Equality On TrialMaryland&hellip  |  January 15, 2014 at 12:19 pm

    […] The news came as many newly performed same-sex marriages in Utah are in legal doubt. After the Supreme Court issued its stay of the federal district court’s decision requiring Utah to recognize and perform the […]

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