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Utah marriages are on for Monday morning

Timothy Kincaid

December 22nd, 2013

As we mentioned in our Utah update, the state had requested that the Tenth Circuit stay Judge Shelby’s ruling on marriage equality until such time as they could ask the judge to stay his own ruling.

The Tenth Circuit said, “no”. (Buzzfeed)

“Defendants-Appellants acknowledge that they have not addressed, let alone satisfied, the factors that must be established to be entitled to a stay pending appeal,” the court held. The factors include a showing by the party asking for a stay that they are likely to succeed on appeal, that they would suffer “irreparable injury” if they do not get a stay, that other parties would not injure other parties, and an assessment of where the “public interest” lies.

The judges wrote that the state could refile a similar motion at a later point so long as it complied with the court’s rules. Holmes was appointed to the appellate court by President George W. Bush; Bacharach was appointed by President Obama.

Which means that at 8:00 am, marriage licenses will again be handed out and marriages will occur at least until such time at Judge Shelby rules on whether the state is likely to succeed on appeal. And, considering that he issued his ruling in summary judgement (a sort of “you’re obviously right” ruling), I doubt that he’ll think they have much of a chance.

And, because I’m sure that Governor Herbert will be ranting some more about activist federal judges, let’s meet them:

Above the Law described Judge Jerome Holmes this way when he was appointed to the bench:

Holmes is a highly respected, exceptionally well-credentialed attorney. Who happens to be extremely conservative. Who happens to be African-American. And who happens to be quite outspoken on a number of issues, including affirmative action — which he strongly opposes.

One of our Hill sources describes Holmes as “the next Clarence Thomas,” who has liberals running scared.

And Tom Coburn (R-Oklahoma), who has a 0% support record from HRC, said this about Bacharach (NewsOK)

“You cannot find a blemish on this man in terms of his personal integrity,” Coburn said, adding that Bacharach had “one of the greatest intellects” he had come across.

“I have never met anybody who knows the Constitution — its limitations, its intent — better than Judge Bacharach,” Coburn said.

These gentlemen, or others on the Tenth Circuit, may eventually issue stay. They may even overturn the ruling. But for now hundreds of same-sex couples can thank them for making their marriage possible.



December 23rd, 2013 | LINK

The Tenth Circuit has 9 Democratic appointments vs. 11 Republican ones, so it’s not terribly conservative.

December 23rd, 2013 | LINK

Of course they’ll change their tunes on those assessments the moment they hear of a ruling they happen to disagree with.

Timothy Kincaid
December 23rd, 2013 | LINK


One of the fascinating things we have learned in recent years is that the political party of the appointing President – or even of the judge him or herself – is not a predictor of the ruling when it comes to marriage equality. I’d have to review to be certain, but I believe that the majority of pro-gay rulings in recent years have been from Republican judges or, at least, Republican-appointed judges.

This isn’t to say Democrats are in any way anti-gay, we may just have not been in front of as many.

I used to be worried when I learned that a judge hearing a gay rights case was Republican or an appointee of, say, Dubya. I no longer do so.

December 23rd, 2013 | LINK

I’m not aware of any W. appointees issuing pro-gay rulings. It’s quite true that the majority of good federal rulings have come from Republican-appointed judges–but Nixon, Reagan, or Bush I.

The other problem with the 10th circuit is that even its Democratic appointees tend to be conservative, since they have to be cleared by conservative state parties. It’s better on gay rights than the 5th or 8th Circuits, but not by much.

(This denial of a stay was on a hyper-technical issue–whether the state can obtain a stay without following normal procedures.)

December 23rd, 2013 | LINK

Timothy Kincaid: case in point: Vaughn Walker. Appointed by Bush I, not notoriously liberal in his decisions.

As for the state of Utah, they seem to be playing by the “conservative” handbook: rules are for other people.

I’m wondering if the 10th Circuit might follow in the steps of the 9th in Perry: not overturn the decision, but try to limit it. Shelby’s decision is pretty thorough and closely reasoned, as was Walker’s, and addresses substantial federal constitutional issues. That doesn’t mean the Circuit Court will accept it in toto.

December 24th, 2013 | LINK

“I used to be worried when I learned that a judge hearing a gay rights case was Republican or an appointee of, say, Dubya. I no longer do so.”—Still, I’m glad that apparently it’s Sotomayor, rather than, say, Scalia, who gets to decide on the stay.

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