A federal district judge in Utah opened the door for marriage equality in the Mormon homeland. His decision could be stayed next week as Utah’s attorney general announced the state will appeal, but for now marriage licenses were being issued. [Update: immediate stay denied by the 10th Circuit.]
As Reason.com reports (I’ve inserted the case they meant to reference):
Some may be amused to note that [Judge Robert J. Shelby] actually quotes Justice Antonin Scalia’s warning from his dissent in [Windsor v. United States, which overturned the Defense of Marriage Act] that the majority opinion opened to door for this very ruling. He says that Scalia was absolutely correct.
From Judge Shelby’s opinion:
Honorable Antonin Scalia recognizes that this result was the legal outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take a state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion… As I have said, the real rationale of today’s opinion…is that DOMA is motivated by “bare…desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
…The court agrees with Justice Scalia ‘s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
Should this case be joined with those that are heading toward the U.S. Supreme Court, it will be fun to see Scalia dance around his words.
Utah is the 9th state in 2013 to recognize marriage equality. All together, 18 states—CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, RI, VT, UT, and WA—plus Washington, D.C. now have freedom to marry for same-sex couples.
Update. Same-sex marriage in Utah has now been stayed by the U.S. Supreme Court until the 10th Circuit Court of Appeals hears and rules on the state’s appeal. Eventually, this one may end up being adjudicated in full before the Supreme Court.
24 Comments for “Utah Moves Forward”
posted by Houndentenor on
Just a month ago in discussions of where we go with the marriage equality movement after New Mexico the consensus seemed to be that Utah would be about the last place where same sex marriage would become legal. Surprise! Surprise!
Here’s my prediction (don’t worry I’m almost always wrong about these things): the states with the most draconian anti-gay marriage amendments are going to be the next ones to see them struck down. The mean-spiritedness of the anti-gay forces is going to turn out to be their Achilles heel.
posted by Tom Scharbach on
Here’s my prediction: the states with the most draconian anti-gay marriage amendments are going to be the next ones to see them struck down. The mean-spiritedness of the anti-gay forces is going to turn out to be their Achilles heel.
I hadn’t thought about it this way, but you could well be right. The trial decision in Perry depended in large part on a rich record of statements demonstrating the the motive behind Prop 8 was bias, and nothing else. The record is most likely to be replete with bias statements in the states where anti-gay sentiment was strongest, because the anti-marriage forces would be less likely to try to cover their tracks in order to appear reasonable.
posted by Tom Scharbach on
Utah is the 9th state in 2013 to recognize marriage equality. All together, 18 states—CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, RI, VT, UT, and WA—plus Washington, D.C. now have freedom to marry for same-sex couples.
Judge Shelby’s opinion is well reasoned and no doubt will be interesting and informative reading for federal judges considering cases in the other 20-odd states where anti-marriage amendments are currently under challenge.
But I think we need to temper our enthusiasm about “freedom to marry for same-sex couples” with a bit of caution.
We have gained marriage equality in 17 states, and in each, marriage equality is expected to stick despite challenges in a few.
But starting with Utah and looking forward, as was the case in California, we will be fighting primarily in federal courts. District Court opinions in each case are almost certain to be stayed (that is, held in abeyance) pending appeal and final resolution.
A notice of appeal and a motion for an emergency stay of the Utah decision has been filed, and is expected to be granted next week. If the stay is granted, Utah will follow the California pattern, with a continuing ban on same-sex marriage for several years while the case works its way through the appellate process.
I am not sanguine that the 10th Circuit ruling in favor of marriage equality. It is known as a conservative Circuit. We are more likely to prevail at the Circuit level in the Michigan, Ohio and Virginia cases now working through the District Courts in those areas.
I need not remind anyone who is familiar with the marriage equality litigation across the country that marriage equality will ultimately be consider by the Supreme Court, and that our potential for victory at that level are fragile. Whether we prevail in the expected Supreme Court decision in 2018-2016 will depend entirely on the composition of the Court at that time. At this point, I am confident that we would prevail 5-4. But there is a good chance that one or more of the current Justices will die or resign before then, and the composition of the Court will be determined by the incumbent President when a vacancy occurs. Because three of the Justices most likely to die or resign are in the current pro-equality majority, it would take just one additional social conservative justice replacing Justices Breyer, Ginsburg or Kennedy to block marriage equality for many years to come.
posted by Mike in Houston on
I’m a bit more optimistic —
1) When you make arguments in Court, you’re not allowed to lie and get away with it (hence why you’ve never seen Maggie G. or Brian B. step into the witness box).
2) Most people no longer buy into the arguments against civil marriage equality… and that includes non-ideologue conservative judges. I’m mean, really, don’t let the gays get married because the state needs to reign in all that outside-of-marriage sex by straight people?
3) We’ve passed the magic # of states with marriage equality to preclude a federal amendment.
That said, you’re correct to worry about a Supreme Court that is all to willing to go with a GOP-inspired activist agenda as they’ve shown over the last few years.
posted by Houndentenor on
I’m not at all confident on what SCOTUS will do with this case. I know that there would have been no chance at all of a victory had McCain beaten Obama in 2008 and appointed Scalia-esque justices to the court (which is what he promised to do).
posted by Ace on
I’m not so sure about Justice Sotomayer. From my reading of Kennedy’s dissent in California Prop. 8 case, he sounded disappointed he didn’t have a majority to expand “Lawrence” to state bans on same-sex marriage (as “Lawrence” overrode state bans on anti-discrimination laws that applied to gays and lesbians). And the reason he didn’t have a majority was because Justice Sotomayer joined with Roberts and the conservatives to invalidate Prop. 8 on very narrow (and, I agree with Kennedy, very suspect) grounds of lack of standing.
It would not surprise me if Sotomayer isn’t with us when push comes to shove.
posted by Tom Scharbach on
It would not surprise me if Sotomayer isn’t with us when push comes to shove.
I’m not surprised. In fact, I expected a 7-2 vote on standing, and was surprised that some of the justices didn’t join in.
Standing precedes consideration of the merits. No standing, the appeal fails, and nothing else counts.
Sotomeyer has very strong opinions about standing, based on her writing before she was elevated to the Court. I can see her not budging an inch once she decided that the case should be decided on standing, no matter what her views about the merits.
I’m not worried about her. But we won’t know for another 6-8 years.
posted by Jim Michaud on
Utah, wow! Poor Pennsylvania. Not only are they 3/4 surrounded by Marriage Equality states, they’ve been beaten to the buzzer by–Utah. C’mon Keystone State. Let’s get the entire Northeast Corridor covered. Gee, if it keeps going at this rate, we won’t need a Loving-style ruling by SCOTUS.
posted by Tom Scharbach on
Should this case be joined with those that are heading toward the U.S. Supreme Court, it will be fun to see Scalia dance around his words.
Nothing to dance around, Stephen. Scalia wrote in dissent. He didn’t agree with the majority in either Windsor or Lawrence.
The language quoted was a prediction of the consequences of the majority opinion, not agreement. Scalia is as smart a man as we’ve had on the court since Justice Cardoza, and the fact that he can predict legal cause and effect is hardly surprising.
In the marriage equality case, Scalia’s dissenting opinion will read “As I noted in Windsor and Lawrence, blah, blah … Today’s result is the inevitable result of the Court’s wrongheaded decisions to blah, blah … I dissent.”
posted by Houndentenor on
Scalia is an unrepentant bigot. No wonder he’s the favorite justice of right-wingers. He’s anti-gay and proud of it. Do a search. You’ll get plenty of quotes. He doesn’t feel he needs to dance around anything. He’s also corrupt, going on trips paid for by people with business before the court (Thomas is guilty of that too). Most of us would get fired for such conflicts of interest. In a better world we would have impeached both of them already.
posted by Jorge on
This worries me less than it did several years or even several months ago. People seem okay with accepting gay marriage now. The harm of judicial legislation is less than it used to be, and people are already focused at where those harms currently are–religious exemptions. Also the Republican party is a little more mediocre in strength. No chance of a constitutional backlash that was any stronger than the last one.
In other words, sour grapes.
posted by Tom Scharbach on
A note on the Utah case, and the question of an “emergency stay”:
On Friday, Judge Robert Shelby of the District Court for the District of Utah ruled that Utah’s anti-marriage amendment was unconstitutional. The State of Utah filed a notice of appeal and a motion for a stay pending appeal.
The motion will be heard today by Judge Shelby.
If Judge Shelby issues a stay, then Utah officials will no longer issue marriage licenses until the appellate process has concluded, a process which will take several years.
If Judge Shelby does not issue a stay, then the State of Utah will file a motion in the 10th Circuit for an emergency stay. That motion will be heard and decided reasonably quickly, probably before the end of the week. If the 10th Circuit issues a stay then Utah officials will no longer issue marriage licenses until the appellate process has concluded, a process which will take several years.
In short, in either case, if a stay is issued, the Utah case will follow the pattern of the California case, where marriage equality is on hold until the appeal process is concluded.
The flurry of headlines to the effect that “10th Circuit Denies Emergency Stay” yesterday is a sideshow. The State of Utah filed a motion directly in the 10th Circuit for an emergency stay, bypassing the normal process for obtaining a stay, outlined above. The 10th Circuit dismissed the motion “without prejudice” on the grounds that the Governor’s motion did not meet the criteria for bypassing the District Court and the normal process for obtaining a stay. “Without prejudice” means that the 10th Circuit did not decide the merits of the question, which will be presented and considered if and when the matter reaches the Court in normal course.
I have no way of predicting whether or not a stay will be issued by either Judge Shelby or the 10th Circuit. In both cases, a stay is discretionary. Court rulings are stayed when the party seeking the stay is able to show that “irreparable harm” will be done if the ruling is allowed to take effect pending appeal. In plain English, that means that circumstances will change in a way that will inevitable harm someone, usually the party seeking the stay, and that the harm cannot be turned by or repaired if the final decision is to overturn the District Court’s ruling.
In normal course, I would have expected a stay based on the pattern established in California, but quite a number of legal experts are suggesting that the State of Utah will have a tough time meeting the “irreparable harm” standard required for a stay, while granting a stay will harm same-sex couples who are denied marriage during the appellate process. The legal experts making that argument argue that circumstances have changed since the California case, now that federal law has changed with respect to same-sex couples. Denying marriage to an elderly same-sex couple may well mean denial of social security spousal benefits and/or inheritance rights and/or estate tax exemptions, for example, should one of the potential spouses die during the stay period.
I’ll be watching the 10th Circuit, in particular, with great interest as we go forward. The 10th Circuit is known as a conservative Circuit; if we prevail in the 10th Circuit, either on the stay or the Court’s decision in the appeal, that’s an important bellweather.
On side note relating to an earlier thread, I notice that social conservatives are continuing to characterize the Utah cohabitation ruling as a ruling striking down Utah’s polygamy laws. I can forgive laymen for not understanding the case in the initial aftermath of the ruling, but at this point the drumbeat is disingenuous fear-mongering.
I just love (in the sense that it is pure moonshine) this sentence in Jacoby’s commentary: “The judge’s ruling still leaves plural marriage technically illegal in Utah, but only “in the literal sense” of having two or more marriage licenses. Otherwse, polygamy has now been effectively decriminalized in Utah — a state admitted to the union on the condition that it forever ban the practice of polygamy. ” Technically but only in the literal sense, indeed. This coming from social conservatives, who have spent millions upon millions defending “traditional marriage” in the “technical, but only in the literal sense”.
The insanity of it all cracks me up.
posted by Tom Scharbach on
Sorry. Let me correct a formatting error:
I just love (in the sense that it is pure moonshine) this sentence in Jacoby’s commentary: “The judge’s ruling still leaves plural marriage technically illegal in Utah, but only “in the literal sense” of having two or more marriage licenses. Otherwse, polygamy has now been effectively decriminalized in Utah — a state admitted to the union on the condition that it forever ban the practice of polygamy.” Technically but only in the literal sense, indeed. This coming from social conservatives, who have spent millions upon millions defending “traditional marriage” in the “technical, but only in the literal sense”.
The insanity of it all cracks me up.
posted by Tom Scharbach on
Update: In Utah, Judge Shelby refused to issue the stay this afternoon. The State of Utah has filed a motion for an emergency stay with the 10th Circuit. No date has been scheduled for the hearing before the 10th Circuit.
In Ohio, District Court Judge Timothy Black ruled that the State of Ohio must recognize an out-of-state same-sex marriage for the purpose of issuing a death certificate. The ruling was limited to death certificate issuance, and does not overturn Ohio’s anti-marriage amendment. However, Judge Black’s language suggests that he, in any event, would probably overturn the anti-marriage amendment if and when the case is tried:
posted by Tom Scharbach on
Another Update: In a decision that surprised me, the 10th Circuit refused to issue a stay of Judge Shelby’s decision. In a brief order, the motions panel of the 10th Circuit ruled that a stay was not warranted. The panel set the case for expedited review.
The State of Utah indicated that it will file a motion for a stay with the Supreme Court. The motion will be heard by Justice Sonia Sotomayor, the Circuit Justice for the geographic area that includes Utah. Justice Sotomayer has the option of ruling on the motion alone or referring the motion to the full Court.
Motions are typically decided quickly. Assuming that the state files the motion today (Thursday), we are likely to have Justice Sotomayer’s decision Friday or Monday.
posted by kosh iii on
“Scalia is as smart a man as we’ve had on the court”
Too bad he’s a fraking fascist who’d cheerfully destroy us and this country if he could.
posted by Houndentenor on
I guess if one’s definition of “smart” is the ability to rationalize one’s own bigotry and superstitions, then he is perhaps as “smart” a man as we’ve had on the court. Personally I don’t find such people to be smart at all. Clever, perhaps, but annoying especially when quoted by other bigots to justify their own nonsensical beliefs.
posted by Tom Scharbach on
For those interested, Jack Ford has done a great job of analyzing the Utah decision in plain English, dissecting the testimony of the anti-marriage crowd using court transcripts of the arguments. It is definitely worth a read by anyone interested in the legal arguments going forward.
The more I think about it, the more I think that this case is going to prove to be a foundational post-Windsor decision. Judge Shelby, who was appointed by President Obama and supported by both Utah Republican Senators, was an inspired appointment to the bench.
posted by Scott Shackford on
Stephen,
I went “Hey! I’m not wrong!” at your correction of my reference of cases, but I went back and checked and we’re both correct. Yes, Shelby refers to the Windsor case early in his ruling, but much later he references the Lawrence v. Texas case and Scalia’s dissent there (page 31). I thought that was the more interesting inclusion since it was Scalia’s first warning.
posted by Tom Scharbach on
By the way, since Stephen hasn’t mentioned it as he usually does whenever a Republican does anything in support of “equal means equal”, I want to note that Judge Shelby, although appointed by President Obama, was, according to state voter records, a registered Republican, and was highly recommended for the bench by both Senator Hatch and Senator Lee.
posted by Tom Scharbach on
The Supreme Court granted the State of Utah’s application for a stay this morning, apparently without dissent:
The stay granted today will remain in place until the 10th Circuit decides the case. The 10th Circuit’s decision will almost certainly be appealed to the Supreme Court. The Supreme Court routinely stays decisions appealed to it, so we can expect the stay to remain in play until after SCOTUS denies cert or, if cert is granted, renders a decision.
posted by Mike in Houston on
I guess the bigots still get their day in court… but as with Perry, the fact that literally thousands of same sex couples were legally married in the interm makes it that much harder to argue potential harm to Utah versus actual harm to its gay & lesbian legally married citizens.
And the more the arguments try to widely avoid the real basis for discrimination (religious-based animus), the more ridiculous they become…
“If the gays can get married, then straight people will have sex and children outside of marriage…”
posted by Tom Scharbach on
And the more the arguments try to widely avoid the real basis for discrimination (religious-based animus), the more ridiculous they become …
The State of Utah did a workmanlike job with almost nothing to argue. I suspect that the Supreme Court granted the stay because it wants the legal issue to continue to develop across the 20-odd states where the matter is being litigated, and for several cases from several Circuits to be taken up at one time, the term after next.
I found one part of the State of Utah’s brief fascinating, not because I think that it has merit, but because it is ingenious:
The argument doesn’t have merit because the research doesn’t support the conclusion that gender diversity makes for better parenting outcomes, but dragging in Catholic terminology (complementarity) predicts a Catholic natural law argument when the case goes forward on the merits, which is fascinating, and the appeal to “diversity” in education opens a pandora’s box.
After all, if two parents of opposite-gender form a more complete parenting package than two parents of the same gender, because the masculine and the feminine are different, who is to argue that three or four parents of various genders (say a hyper-masculine man, a man with a more feminine nature, a woman with more masculine characteristics and a woman who is very feminine) don’t provide an even more diverse, more complete, parenting package?
I realize that this is taking the State’s argument to the absurd, but it is difficult for me, once “diversity in parenting” becomes the measuring stick for marriage, to see a logical basis on which to reject multiple-partner marriages. After all, few of us who are parents are arrogant (or stupid enough) to think that we are the complete package of a parent of our gender, as either father or mother. It is enough, we know, to be “sufficient” as a parent, because that is all we can be.
posted by Tom Jefferson III on
looks like gay marriage in Utah will have to wait a wee bit longer, at least accordingly to some news reports.