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Utah marriage case appealed to Tenth Circuit Court of Appeals

LGBT Legal Cases Marriage equality Marriage Equality Trials

See updates at the bottom of this post

The state defendants in the challenge to Utah’s same-sex marriage ban have filed a notice of appeal of today’s decision striking down the ban. Earlier today, a federal district court ruled that the ban is unconstitutional. There is not yet an application for a stay of the district court decision, and same-sex couples in Utah have been applying for and receiving marriage licenses since the decision came down. However, the state is reviewing its options.

Thanks to Kathleen Perrin for these filings

UPDATE: 8:30PM ET The state defendants are seeking an emergency stay of the ruling, along with the appeal. No official word yet on whether the stay was granted.

UPDATE 2: 8:40PM ET The appeal has been docketed at the Tenth Circuit.

UPDATE 3: 8:49PM ET: There is some conflicting information out there, but the Associated Press is reporting that state officials are saying it could be days before a stay is sought:

The state filed a notice of appeal late Friday and was working on a request for an emergency stay that would stop marriage licenses from being issued to same-sex couples.

‘‘It will probably take a little bit of time to get everything in place,’’ said Ryan Bruckman, a spokesman for the attorney general’s office. Bruckman said the judge told the attorney general’s office that it would be a couple of days before he would review any request for an emergency stay.

UPDATE 4: 10:35PM ET: A reporter is tweeting that a federal judge has said an emergency stay won’t be considered for days.

UPDATE 5: 1:10AM ET: Here is the state defendants’ request to the district court judge for a stay of his decision. In summary, the state argues that lower court decisions and an 8th Circuit decision provide evidence they’re likely to succeed on the merits; as far as irreparable harm to the state, they argue that the state suffers irreparable harm in the absence of a stay because the amendment was enacted by voters, and because of the administrative burdens associated with implementing the decision, both the state and the public interest suffer. Beyond that, the filing focuses mostly on the harms to same-sex couples who are plaintiffs. They argue that the marriage equality ban should remain in effect to prevent harms to same-sex couples because “the Plaintiffs and others will suffer harm if a stay is not granted and they proceed to marry during the pendency of an appeal that is ultimately successful.” Thus, they argue there would be a “cloud of uncertainty” over the marriages, which would harm same-sex couples.

92 Comments

  • 1. jpmassar  |  December 20, 2013 at 4:18 pm

    Can a stay, if granted, invalidate the just enacted marriages? Doesn't seem like it could, but then, IANAL.

  • 2. jpmassar  |  December 20, 2013 at 4:20 pm

    If not, Utah will have to treat dozens if not hundreds of same-sex couples married before the stay was issued as legally married while the appeal proceeds. Ah, just the thought of that is pleasing…

  • 3. jpmassar  |  December 20, 2013 at 4:22 pm

    Andrés Duque ‏@Blabbeando 11m
    !RT @EricEthington: Hearing rumors the emergency stay to stop #gaymarriage in Utah was denied. Stay tuned. #utpol #lgbt

  • 4. RAJ  |  December 20, 2013 at 4:23 pm

    Not sure if it will do any good, but here are the numbers for the Utah Attorney Generals office. LGBT groups are asking people to FLOOD the office and ask the AG to stop trying to get a stay of the ruling:

    (801) 366-0260
    (801) 538-9600
    (801) 366-0300

  • 5. ldavis  |  December 20, 2013 at 4:23 pm

    On what grounds can they appeal? And what is the use? The bottom line is that it IS unconstitutional to prohibit marriage equality and equal protection under the law

  • 6. LK2013  |  December 20, 2013 at 4:24 pm

    Get married as fast as you can!

  • 7. Scottie Thomaston  |  December 20, 2013 at 4:26 pm

    The state has the right to appeal from an adverse ruling. Essentially they're in charge of enforcing the laws so a decision striking down a law allows them to appeal.

  • 8. ldavis  |  December 20, 2013 at 4:26 pm

    It is just a waste of money to prolong justice with an appeal and with a stay. What are these people (that are appealing) thinking? Ya gotta wonder.

  • 9. Scottie Thomaston  |  December 20, 2013 at 4:26 pm

    I wondered about this myself. I know in CA, there was a CA supreme court decision declaring those marriages valid. Wonder if that would affect the analysis.

  • 10. Eric  |  December 20, 2013 at 4:26 pm

    Spending taxpayers money to fight for a lost cause is an act of poor judgment.

  • 11. Mrxandermc  |  December 20, 2013 at 4:30 pm

    Where did you hear this?

  • 12. Matt227  |  December 20, 2013 at 4:30 pm

    No, because they are legal under present circumstances.

  • 13. Breaking: Utah Governor A&hellip  |  December 20, 2013 at 4:30 pm

    […] Equality on Trial reports that the “state defendants in the challenge to Utah’s same-sex marriage ban have filed an appeal of today’s decision striking down the ban,” but note there “is not yet an application for a stay of the district court decision.” […]

  • 14. jpmassar  |  December 20, 2013 at 4:31 pm

    It was a tweet that came across my twitter feed. I thought it was obvious that it was a tweet. I'll be clearer in the future.

  • 15. Box Turtle Bulletin &raqu&hellip  |  December 20, 2013 at 4:36 pm

    […] Update: Equality on Trial says that the state has appealed the judge’s decision to the Tenth Circuit Court of Appeals: […]

  • 16. Matt227  |  December 20, 2013 at 4:37 pm

    Well leave voicemails anyway. Will have to wait until Monday to get a real person.

  • 17. Warner  |  December 20, 2013 at 4:39 pm

    My question is simply this: are the circuit courts required to bend to the precedence set by the rulings of the supreme court on similer matters? If they cannot override the rulings of the supreme court, does this mean that they would be bound by judicial precedence to accepting the supreme court's prop 8 ruling on the constitutional validity of states passing laws to deny equal and due process under the law on the basis of voter animus?

  • 18. José Merentes  |  December 20, 2013 at 4:41 pm

    I wonder wether to stay the effects of the ruling (permission for marriage to same sex couples) means that should the contrary happens (not warrant the stay) affirms validity of marriages already performed. So these marriages cannot be declared voided as happened in Australia.

  • 19. Bruno71  |  December 20, 2013 at 4:42 pm

    A stay in and of itself, no. I imagine the 10th Circuit could only invalidate those marriages after being petitioned to do so in some emergency fashion. I find the possibility unlikely, but that's a layman's opinion. My guess is it'll be like in California, the question of the validity of those marriages will be decided at the same time as the case itself.

  • 20. John Allard-Lawson  |  December 20, 2013 at 4:47 pm

    SCOTUS did not rule on Prop 8, other than to say that the party appealing the case (the amendment sponsors, not the state) did not have the standing to appeal.

  • 21. Jeff  |  December 20, 2013 at 4:48 pm

    The Supreme Court did not rule on the merits of Prop 8 but rather standing (they said the state had to defend it not private groups).

  • 22. Bruno71  |  December 20, 2013 at 4:49 pm

    The stay does not say anything about the validity of those marriages in and of itself. That would have to be dealt with separately. However, if the 10th refuses to stay the ruling and lets marriages continue, we could feel optimistic that the court would side in our favor ultimately, just from a logical standpoint.

  • 23. Walter  |  December 20, 2013 at 4:55 pm

    Finished reading the decision. It is pretty much a home run with all the bases loaded. It is actually a fairly conservative opinion as it suggests heightened scrutiny but then backs off with a rational analysis. It does declare that marriage equality is a fundamental right to marriage because today we understand human sexuality better than in the past. “Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.” And of course, Judge Scalia just keeps giving and giving.

  • 24. Hcutler  |  December 20, 2013 at 5:02 pm

    No, a stay is just a "waiting period" until a further ruling.

  • 25. mtnbill  |  December 20, 2013 at 5:13 pm

    The California marriages were originally ruled invalid by the CA Supreme Court because the SF Clerk did not have the jurisdiction to declare same sex marriages were valid–only State officials could do that. There had been no court decision authorizing the marriages–the City of SF just went ahead. Marriages made after the CA Supreme Court ruled same sex marriage was valid were still recognized even though Prop 8 passed and prohibited any more, until the US Supreme Court et al. were finally finished.

  • 26. Valquiria  |  December 20, 2013 at 5:24 pm

    When the history of SSM in the USA is written, Scalia will be central. And I love that.

  • 27. JayJonson  |  December 20, 2013 at 5:30 pm

    I think the decision is extraordinarily well-written and reasoned. As Walter says, it is wonderful to hear Scalia's words thrown back in his face. But I understand that the Tenth Circuit is very conservative and very political. Anyone know what the chances of this ruling surviving there?

  • 28. tux_sf  |  December 20, 2013 at 5:34 pm

    mtnbill-
    I think you are confusing the marriages performed in SF earlier–BEFORE the CA Supreme Court ruled on the marriage question. I believe the earlier posters were talking about those marriages performed between the time they ruled the ban unconstitutional, then allowed marriages before Prop. H8TE passed. Those marriages were specifically ruled valid by the CA Supreme Court after H8TE passed.

  • 29. Bruno71  |  December 20, 2013 at 5:37 pm

    No ruling on the emergency stay for a couple days. It seems to me they had to go to Judge Shelby first before the 10th?
    http://thenewcivilrightsmovement.com/breaking-jud

  • 30. José Merentes  |  December 20, 2013 at 5:39 pm

    ¿Que tal, Utah, Andrés? Nos han dejado a la cola de América.

  • 31. Debbie Red  |  December 20, 2013 at 5:50 pm

    How long is the waiting period in Utah after. Getting license?

  • 32. Bruno71  |  December 20, 2013 at 5:56 pm

    From all I can gather, no wait.

  • 33. Judith  |  December 20, 2013 at 6:24 pm

    My friend and her wife got the license and got married, all within a couple of hours.

  • 34. grod  |  December 20, 2013 at 6:29 pm

    Bruno Apparently he has been attributed to have indicated that it would a couple of days before he could ruled on that. Recall NJ Judge Mary Robinson's ruing on a stay of her favourable decision, it's been said that it boxed in the NJ Supreme Court's ruling on a emergency stay. http://www.judiciary.state.nj.us/samesex/Order_St

  • 35. nightshayde  |  December 20, 2013 at 6:30 pm

    May they have a long, happy, healthy – and fully-recognized marriage!

  • 36. grod  |  December 20, 2013 at 6:32 pm

    Reference: http://www.usmarriagelaws.com/search/united_state

  • 37. FYoung  |  December 20, 2013 at 6:51 pm

    Just to be clear, in case anyone is unaware of this, same-sex couples have already started to get married in Utah, starting today, Friday:
    http://abcnews.go.com/US/wireStory/judge-strikes-

  • 38. laytonian  |  December 20, 2013 at 6:54 pm

    No.
    A "stay" is just a temporary halt awaiting formal filing of the appeal.

    The court doesn't have to grant the stay; it does have to accept the motion to appeal. If the stay is granted, there will be a halt (but not invalidations). Then, upon the results of the appeal, the marriages will either begin again or be permanently halted (at which time the case would be appealed by the other side).

  • 39. Bruno71  |  December 20, 2013 at 7:06 pm

    Call this an instinct based on his ruling in the case and his decision not to impose an immediate stay, but I think he'll smack their emergency stay request down. However, then the 10th Circuit will step in and likely impose one.

  • 40. David UT  |  December 20, 2013 at 7:06 pm

    The Salt Lake Tribune has posted pictures of couples being married in Salt Lake City.

  • 41. Zack12  |  December 20, 2013 at 7:14 pm

    Sadly,the 10th circuit will likely grant a stay but I can't see the marriages being made null and void.
    As for Scalia,this isn't his words being thrown back in his face as much as it is him not pulling any BS unlike so many others when it comes to marriage equality even though he's a bigot through and through.
    Yes there was federalism in the DOMA ruling but there was also parts of it that made clear if you're going to ban marriage,you better have a darn good reason.
    And as Scalia knows better then anyone,the reasons given by the opposing side can't pass Constitutional muster.

  • 42. Paul s  |  December 20, 2013 at 7:31 pm

    Elections matter. Judge Robert J Shelby appointed by OBAMA.

  • 43. icapricorn  |  December 20, 2013 at 7:36 pm

    Spending taxpayer's money to fight for lost causes is all the social conservatives have left. As far as the Utah governor and AG are concerned, judgement has nothing to do with it. It's about catering to the passions of an energized base, it's about keeping your job and covering your ass.

  • 44. Zack12  |  December 20, 2013 at 7:52 pm

    And nominated by Orrin Hatch and Mike Lee..LMAO!!

  • 45. StraightDave  |  December 20, 2013 at 8:21 pm

    Damn! Doesn't that map look so much sweeter now! I'll take it as long as it lasts. http://en.wikipedia.org/wiki/File:Samesex_marriag

  • 46. Carpool Cookie  |  December 20, 2013 at 8:26 pm

    Is that a proposal?

  • 47. mtnbill  |  December 20, 2013 at 8:31 pm

    I think the question of marriage in Utah will not be an emergency–after all, the couples could have gotten married in another state that does same sex marriage. The question will be when they apply for Utah benefits or federal benefits contingent upon state of residence. Then the question of marriage will be a significant one for state recognition.

  • 48. Dr. Z  |  December 20, 2013 at 8:44 pm

    Not sure what leads to the conclusion the 10th is notably more conservative than, say, the 5th. The 10th covers UT, WY, OK, KS, NM, CO and its current judges are about evenly split between Democratic and Republican appointees.

    The 10th is based in the Byron White Courthouse in Denver – named for the author of the infamous Bowers v. Hardwick sodomy law decision.

  • 49. Alan948  |  December 20, 2013 at 9:32 pm

    Stay motions were filed at 8:30 PM MST in the district court and then at 9:12 in the 10th circuit. The 10th circuit motion relates how the judge below blew them off (so to speak) and refused to consider the stay motion with any urgency, and that's why they want relief from the appeals court before Monday.

    A free copy of the short district court motion can be found here: http://ia600903.us.archive.org/15/items/gov.uscou

    Here's the text of the more-interesting appellate motion:

    EMERGENCY MOTION FOR TEMPORARY STAY

    Utah State Defendants Governor Gary R. Herbert and Acting Attorney General Brian L. Tarbet, by and through their counsel of record, pursuant to Federal Rule of Appellate Procedure 8, hereby move this court for an emergency stay of the district court’s order entered December 20, 2013, pending resolution of a motion for stay being filed contemporaneously in the district court.

    FACTS

    1. The district court declared Utah’s definition of marriage as between a man and a woman unconstitutional in a Memorandum Decision issued today, December 20, 2013 at 1:30 p.m. Doc. 90. See Addendum A.

    2. The decision enjoins the State of Utah from enforcing Article I, § 29 of the Utah Constitution and Utah Code § 30-1-2 and § 30-1-4.1.

    3. A final judgment was entered shortly after the decision was issued. Doc. 92. See Addendum B.

    4. Shortly after the district court issued its decision, counsel for the State of Utah contacted the district court concerning a stay pending appeal. The district court held a conference call with counsel for both Appellate parties. During the conference call, the district court declined to issue a stay sua sponte and refused to entertain an oral motion to stay.

    5. Instead, the district court stated that it would entertain only a written motion and written response from the non-moving parties.

    6. After the district court issued its decision, the Salt Lake County Clerk immediately began issuing marriage licenses to same-sex couples. See Addendum D.

    7. Some same-sex couples were married this afternoon. Id.

    8. The State of Utah has filed a written motion for stay pending appeal in the district court.

    9. The Salt Lake County Clerk’s Office, Marriage License Division, which issues marriage licenses for Salt Lake County, Utah, will open for regular business on Monday, December 23, 2013, at 8:00 a.m. See Addendum E. The State of Utah’s 28 other counties will also be open for business on Monday, December 23, 2013, at 8:00 a.m.

    10. The State of Utah filed its Notice of Appeal today. Doc. 91. See Addendum C.

    [see next post]

  • 50. Alan948  |  December 20, 2013 at 9:32 pm

    [continued]

    ARGUMENT

    An emergency stay is needed to preserve the status quo pending a decision by the district court on the state’s motion to stay. Today, during the afternoon of December 20, 2013, after receiving the district court’s decision, the state orally discussed a stay in a conference call with district court and opposing counsel. The district court declined, to sua sponte stay the decision and would not entertain an oral motion to stay. As such, the only process by which the state may obtain a stay from the district court is by filing a written motion, which it has already filed with the district court, and after awaiting a response from the opposing party and decision by the district court. Given the district court’s statement and the other facts, it is impossible to obtain a stay in the district court prior to commencement of the next legal business day, Monday, December 23, 2013, at which time the Salt Lake County Clerk’s and 28 other County Clerk’s offices in Utah will open under their normal operating hours. In Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001), this court determined that the immediacy of the problem warranted quick intervention by this court.

    The district court’s injunction substantially upsets the status quo. The Salt Lake County Clerk immediately began issuing marriage licenses for same-sex marriages today, after the district court’s decision was issued. Some same-sex couples have been married. Same-sex marriages have never been recognized in Utah prior to today, consistent with a state constitutional amendment which passed with 66% of the vote, and consistent with two sections of Utah Code. See Addendum A, p. 8.

    The state, in order to preserve the status quo, at this time requests that this court enter an emergency order staying the district court’s order until the district court can rule on the state’s written motion. Particularly since this could take several days, this court’s stay is crucial to maintaining the status quo. During the pendency of the district court motion, a considerable number of same-sex marriages could take place. In the event that the district court’s decision is reversed, the licenses issued and the marriages performed in the absence of a stay may be void.

    Inasmuch as this motion is not a motion for a stay pending appeal, but only a motion for stay pending the district court’s consideration of a motion to stay, this motion will not address the criteria for a stay set forth in 10th Cir. R. 8.1. In the event that the district court denies the state’s motion for a stay pending appeal, the state will then file with this court a motion to stay addressing those substantive criteria.

    DATED this 20th day of December, 2013.
    Brian L. Tarbet
    Acting Utah Attorney General

  • 51. Rose  |  December 20, 2013 at 10:43 pm

    A Stay may be granted, but NOT on the grounds that the AG is asking for……I mean really, harm to the Same-Sex Couples who will GET married…….once those marriage licenses are filed with the County Clerk…….they will remain LEGAL and valid!!!

    This is NOTHING more than a pathetic attempt to stop something that hopefully WON'T be stopped………..but if it is, it hopefully won't take long to remedy!!!

  • 52. allen  |  December 21, 2013 at 12:21 am

    reading this ruling has me wondering if Scalia is an undercover ally ⌐_⌐ ¬_¬

  • 53. Equality On TrialState de&hellip  |  December 21, 2013 at 12:49 am

    […] the state asked the district court judge to issue a stay on his decision. As EqualityOnTrial noted earlier, the filing discussed the relevant factors for granting a stay: In summary, the state argues that […]

  • 54. Stefan  |  December 21, 2013 at 1:04 am

    The current makeup is 9 Democratic appointments and 11 Republican appointments, so not terribly conservative.

  • 55. Paul S  |  December 21, 2013 at 2:10 am

    The validity of the marriages during the 5 months that marriage equality was legal was never really in question in CA. The proponents of Prop 8 asked that the marriages be invalidated during one of their oral arguments I think. The Supreme Court had to respond.

    It was heartless of Prop 8 Proponents to ask that those marriages be invalidated then. I think it would be even worse for a state to request they be invalidated now. Truly cruel.

  • 56. Paul S  |  December 21, 2013 at 2:15 am

    And two vacancies, hopefully to be filled soon by Obama.

  • 57. Paul S  |  December 21, 2013 at 2:24 am

    I think the acting AG is confused (something tells me he's in over his head here). The staus quo in Utah is currently that same sex couples are permitted to marry. An emergency stay would upset that status quo. Regardless, I think the Supreme Court has consistently said that preserving the staus quo is not a valid reason for a stay of any decision.

  • 58. Walter  |  December 21, 2013 at 4:57 am

    "The district court’s injunction substantially upsets the status quo." A more accurate statement would be it substantially upsets the Mormon Church.

  • 59. Dr. Z  |  December 21, 2013 at 5:30 am

    I also noticed he didn't address the issue of whether the state's appeal would be likely to succeed on the merits.

  • 60. Chuck in PA  |  December 21, 2013 at 7:58 am

    Two Obama appointees have been waiting for confirmation for a long time. They would switch the active justice ration from 5R/5D to 5R/7D. The Chief Justice of the 10th Circuit is a Democrat. Would an appeal be reviewed by a single justice, a panel of 3, or en bloc? Can anyone clarify for me? Once again it underlies the importance of getting President Obama's appointees reviewed and confirmed.

  • 61. And Utah Makes 18. Wait&#&hellip  |  December 21, 2013 at 9:52 am

    […] licenses right away.  The state is asking the Tenth Circuit Court of Appeals for an emergency stay, but by this point a number of same-sex couples have already gotten married.  Should a stay be […]

  • 62. Lymis  |  December 21, 2013 at 12:50 pm

    I agree that it is, but until the US Supreme Court rules that it s so, it isn't settled law.

    It hinges on the twin questions of whether same-sex marriages are the same sort of marriages as opposite sex marriages or some new legal creation entirely, and whether gay people are actually US citizens whose rights are guaranteed by the Constitution, or just some sort of residents with tax obligations who get whatever the majority is willing to parcel out to them.

    The judge addressed both those concepts in no uncertain terms. For the 10th circuit to rule otherwise would take either bald anti-gay bias or some sort of pretzelized logic that avoids actually addressing the issue, which is hard to do.

    One of the particularly brilliant things in the ruling is that he cut through the BS quite nicely and made it clear that the sharpest parallel is NOT fertile straight couples versus gay couples, but rather INfertile straight couples versus gay couples, and that it marriage is (as it has always been held to be) a fundamental right for infertile straight people, there is no justification for not seeing it as a similar fundamental right for same-sex couples.

    The other, which is likely to be ignored, was when he very clearly laid out all the justifications of why the 10th Circuit should reverse themselves on not mandating heightened scrutiny in matters affecting gay people.

  • 63. Lymis  |  December 21, 2013 at 12:53 pm

    It's hard to imagine they could simply void them as invalidly contracted. They are being conducted during a period when a federal ruling is in place mandating their availability. This isn't like a situation where a county clerk suddenly decides to issue licenses without a change in the law.

  • 64. Lymis  |  December 21, 2013 at 12:55 pm

    No, he's a pompous ass (on this issue, at least) who isn't willing to shut up about it and throw a tantrum.

    If he had constrained himself to statements about why the majority was wrong rather than laying out the inevitable consequences of the logic and precedent of the majority, he wouldn't be in the spotlight right now.

  • 65. Lymis  |  December 21, 2013 at 1:10 pm

    "Merits? We don't need no stinking merits!"

    From the ruling, with a big judicial SU-NAP from Judge Shelby:

    "In its briefing and at oral argument, the State was unable to articulate a specificconnection between its prohibition of same-sex marriage and any of its stated legitimate interests. At most, the State asserted: “We just simply don’t know.” (Hr’g Tr., at 94, 97, Dec. 4, 2013,Dkt. 88.) This argument is not persuasive."

    Ouch.

  • 66. Zack12  |  December 21, 2013 at 1:31 pm

    Indeed he is but unlike so many other conservative bigots who try to downplay the Windsor ruling,Scalia tells it like it is.
    Kennedy is no fool,he put language in his ruling that he knows will not only be used against the state bans but used to win,as it happened here.
    Scalia simply threw a tantrum because he knows that to be the case.

  • 67. Zack12  |  December 21, 2013 at 1:38 pm

    One of the posters here watched the proceedings in person,I follow it on line.
    They used that answer several times or simply refused to answer some of the judge's questions at all.
    Simply put,they couldn't dance around the fact this ban was done out of moral disapproval due to religious beliefs and nothing else.
    It was like the people trying to defend Prop 8,even worse if possible.

  • 68. Bruno71  |  December 21, 2013 at 1:38 pm

    However, that seems to have been the only reason the 9th Circuit stayed Judge Walker's decision in Perry. There couldn't have been a valid one otherwise.

  • 69. Bruno71  |  December 21, 2013 at 1:41 pm

    Still, I have to think it's a bit foolish of Scalia when he does this. He has to know that even if he's right, his words will help precipitate what he doesn't want to see happen. I'm happy he's a fool in this sense, of course. Whatever one can say about him, in general, he usually isn't.

  • 70. Mike in Baltimore  |  December 21, 2013 at 2:20 pm

    Except for one thing – his 'nickname' of 'Fat Tony' is very apropos.

  • 71. StraightDave  |  December 21, 2013 at 2:28 pm

    And the Republican appointees haven't been doing so bad lately, either. Some of them actually act like judges schooled in the law, instead of politicians.

  • 72. Steve  |  December 21, 2013 at 2:34 pm

    Channeling Charles Cooper

  • 73. Zack12  |  December 21, 2013 at 2:42 pm

    It is but like so many other people,when they get really REALLY angry,they say what they actually mean and often highlight prejudices of a certain issue to boot.
    Scalia's dissent in Lawrence V Texas showed exactly what was at the heart of the sodomy laws,a dislike and moral disapproval of gays and lesbians.
    Same with these bans,it is moral disapproval and nothing more.

  • 74. Mike in Baltimore  |  December 21, 2013 at 2:52 pm

    It is my understanding that the SLC County clerk did not begin issuing applications and licenses until after Tarbet gave the 'go-ahead' to issue them. Thus the statements that the clerk 'immediately began to issue applications and licenses' very well could come back to bite the state.

    And reading the 'Deseret News' reports (and editorial opinion) on this, the reports are talking about 'how could a [US] Civil War era Amendment [No. 14] apply, as it ONLY gave freed blacks the same rights as other Americans'.

    I conclude the 'Deseret News' had some discussions with state (and church) officials who were considering using that line of defense, but the state now has decided that doing so could anger the Circuit Court and SCOTUS, and so they don't mention the 14th in their plea for a stay, and their appeal.

    Interestingly, there were discussions of President Obama implementing the provision in the 14th Amendment about the sanctity of the payment of the US debt (Section 4) as a counter to the CONservative threat to not raise the debt ceiling.

  • 75. davep  |  December 21, 2013 at 3:56 pm

    I really would have just loved to have been there to see that stuff being said in court.

  • 76. Fr. Bill  |  December 21, 2013 at 4:45 pm

    The 9th Circuit's stay was issued, I believe, before the Supreme Court's decision on DOMA in the Windsor case. I think that must be taken into account in a reasoned manner by Judge Shelby or the 10th Circuit. It has been decades since I practiced law but I would think in these circumstances the Circuit court would send it back to Judge Shelby to have a hearing where both sides get to brief and argue whether the requirements for a stay are met. It seems like the State of Utah is telling the 10th Circuit "the house is on fire call in the Fire Dept." when they have no evidence of heat, flame or smoke.

  • 77. grod  |  December 21, 2013 at 5:56 pm

    Lymis On pg 48, Judge Shelby response to "we just don't know" was that the AGs for 14 Equality states and the District of Columbia assert that they do know – marriage of gays has not resulted in a decrease in marriages of straights, increase in divorce rates amongst straights,or an increase in non-marital births.

  • 78. grod  |  December 21, 2013 at 6:55 pm

    Fr. Although Walker's Aug 12 2010 ruling made clear that while "none of the factors the court weighs in considering a motion to stay favors granting a stay” the stay would continue to Aug 18, likely out of deference to the Ninth Circuit Court of Appeals. On Aug 16 2010, that Court extended the stay until their determination would be made. It continued until two days after Hollingworth vs Perry and Windsor were decided on June 26 2013. It is clear now that official proponents and campaign committee for prop 8 did not have standing to appeal, having only intervener status in Walker's court. That was nearly a three-year erroneous wait and no example of how to proceed in the Utah case as recommended on page 2 on the state's request for a stay. Bill, America has changed since then.

  • 79. GregG  |  December 21, 2013 at 9:06 pm

    Remember all the talk following Judge Walker's decision that he was obviously biased because he was a gay judge in San Francisco who was in a long term relationship with a man? Isn't it interesting that a judge in Utah who is in a heterosexual marriage came to essentially the same conclusion as Judge Walker?

  • 80. GregG  |  December 21, 2013 at 9:14 pm

    The State's requests for stays completely ignore the impact of losing federal benefits (such as 2013 income tax benefits) for couples whose marriages would be delayed beyond the end of 2013 if a stay is granted. The 2013 tax benefits would not be delayed, they would be forever lost.

  • 81. wayne  |  December 22, 2013 at 7:04 am

    ….wrong gender…..but keep tryin'

  • 82. Craig S.  |  December 22, 2013 at 8:22 am

    In Utah, it's also about doing whatever your church leaders want you to do. Here in Utah we live in a thinly-veiled theocracy. The governor and attorney general are acting based on their personal religious convictions, the same ones that rule the state. No other logic is necessary for them. They are doing the Lord's Work by fighting against gay rights. And no number of phone calls or signed petitions will have the slightest effect on their agenda.

  • 83. Craig S.  |  December 22, 2013 at 8:29 am

    As a Utahn, I still can't believe this is all really happening! I can't wait for Monday morning to see the flurry of couples getting married before a decision on the stay.

  • 84. MightyAcorn  |  December 22, 2013 at 8:35 am

    Even better, he's a victim of the Streisand Effect. Let the punishment fit the crime.

  • 85. MightyAcorn  |  December 22, 2013 at 8:40 am

    Agreed. It might be a sad Christmas Eve for those who didn't get to a Clerk's office in time. Either way…it's on in Utah. Whoda thunk?

  • 86. paul  |  December 22, 2013 at 9:41 am

    @Wayne, would you object to a prenup? :-)

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