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Utah To Appeal Marriage Decision Directly To Supreme Court

Jim Burroway

July 9th, 2014

After a three-judge panel of the Tenth Circuit Court of Appeals upheld a lower court ruling striking down Utah’s marriage equality ban as unconstitutional, the state’s Attorney General’s office had two options: they could either seek an en banc review by all twelve judges of the Tenth Circuit, or they could appeal directly to the U.S. Supreme Court. (Actually, they have three options: they could have decided not to appeal altogether, but they’ve never shown an inclination to consider that one.) Today, the  Attorney General’s office has announced its decision:

“To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United State Supreme Court in the coming weeks,” a news release said. “Attorney General Sean Reyes has a sworn duty to defend the laws of our state. Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

The Utah case now stands a very good chance of becoming the first marriage case to reach the U.S. Supreme Court since the high court last summer struck down Section 3 of the Defense of Marriage Act. That decision led to a wave of more than twenty court decisions since then striking down state marriage bans in more than twenty states.

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gar
July 9th, 2014 | LINK

“Obtain clarity and resolution” is bigot-speak for “until we get our way.”

Eric Payne
July 9th, 2014 | LINK

Gar,

“Obtain clarity and resolution,” in this case, is probably going to ignore Windsor and instead, Utah is going to heavily cite the “narrow opinion” of Hobby Lobby.

L. C. Burgundy
July 9th, 2014 | LINK

I predict that there will exactly zero citations to the Hobby Lobby case on either opinion when this arrives at the USSC, given the RFRA statute has absolutely no bearing on marriage.

gar
July 10th, 2014 | LINK

Eric,

Interesting theory. Unfortunately, though RFRA has nothing to do with marriage, as LC states, I could easily and sadly see conservatives on the Court (read: Scalia and/or Alito) pulling more legalistic legerdemains to get the decision they seek. After the Twister game that’s the Hobby Lobby decision, anything is possible.

enough already
July 10th, 2014 | LINK

L.C. Burgandy,
I am afraid you’re wrong. Absolutely. Hobby Lobby opened the door to tipping any and all rights for gays and women when they stand in conflict with what Christians want.

Nathaniel
July 10th, 2014 | LINK

enough, Hobby Lobby did no such thing. RFRA has been in place for decades and has never been referenced as a justification for anti-marriage laws or for their repeals. Indeed, RFRA would seem more likely to support the opposition to the anti-marriage laws, since it is same sex couples being burdened by these laws, while every other citizen would see no difference in their lives if the laws were repealed. And, since the RFRA is about freeing citizens from unintended infringements on their religious freedom, it would be very difficult for those defending the laws to use the Hobby Lobby decision to fight against equality. In short, the pretzel bending to incorporate Hobby Lobby into anti-marriage law defenses would not be worth any lawyer’s time and effort.

Eric Payne
July 10th, 2014 | LINK

My feeling is Utah is going to use two decisions from the just-ended SCOTUS term to attempt an end-run around the 14th Amendment of “due process.. Citing both Town of Greece v. Galloway and Burrell v. Hobby Lobby, Utah will argue SCOTUS has extended First Amendment religious protections to legal entities beyond just the individual. That Utah is unique, in that its entire history as a Territory, an incorporated area, and that of a state is so intertwined with the traditions and teachings of the Church of Jesus Christ of Latter Day Saints that one simply cannot be extricated from the other. Therefore, in keeping with this terms two “religious rights” rulings, Utah’s ban on same-sex marriage is constitutional.

I know, that reasoning seems directly contradictory to the First Amendment’s prohibition against government “endorsing” religion… but the Roberts Court’s thinking and logic has always been twisting…

Nathaniel
July 10th, 2014 | LINK

Eric, I think I follow your reasoning, though I suspect it is legally flawed. But, for the sake of argument, even if the court’s conservative judges were to buy it, that would result in a ruling limited to Utah. However, I suspect the implications of such reasoning would not sit well with even the most anti-gay Justice.

Timothy Kincaid
July 10th, 2014 | LINK

Eric,

To argue that the state is an extension of the Mormon Church would in direct contradiction to the Establishment Clause. I don’t think a single Justice would go along with that reasoning.

Eric Payne
July 10th, 2014 | LINK

Timothy,

I never said I thought any such strategy would be a winning strategy — though I personally believe if Utah makes such an argument, the four conservative justices would lean hard on Lennedy to accept that argument, and a “Utah only” decision could be the outcome.

L. C. Burgundy
July 14th, 2014 | LINK

Yeah, no justice is going to sign on to any Utah-specific opinion that somehow establishes the LDS as the official Utah church in any sense. That is such a fever-dream invention that it stands unmoored from reality. I stand by my prediction that the RFRA will play zero role in any USSC opinion on same-sex marriage one way or the other. There will be not one citation to it as controlling or guiding an opinion in any fashion, and you can quote me on that.

enough already
July 16th, 2014 | LINK

I think Eric is quite justified in his fears. A Supreme Court capable of granting a corporation religious rights is perfectly capable of determining that a state has them, too.

atriokke
July 17th, 2014 | LINK

Hobby lobby. Freedom from Equality, CKA Freedom of Religion, has a real shot to win this one. Religious practice > illegal practice. Pretzel bending shouldnt be too complicated for this. How can Utah not win if __% of the population’s religious right to boldly exercise rejection of homosexuals will be trumped?

If there’s one thing religious freedom encompasses it is imagination. Mesh it with rulings to freely practice whatever despite the law and I see a bright future to exercise the imagination. The sky is the limit, and the time is ripe to reach for it.

Priya Lynn
July 17th, 2014 | LINK

“I think Eric is quite justified in his fears. A Supreme Court capable of granting a corporation religious rights is perfectly capable of determining that a state has them, too.”.

I agree. Let’s not forget the supreme court ruling that a 35′ buffer zone in front of abortion clinics is an undue infringment on free speech but the 100′ buffer zone in front of the supreme court somehow is not. Justice is subjective to this supreme court.

Timothy Kincaid
July 17th, 2014 | LINK

SCOTUS found that a closely held corporation is in some aspects an extension of those who closely hold it. A state is not.

Not one of the justices is going to find that a state has religious rights.

Priya Lynn
July 17th, 2014 | LINK

A corportation is a limited liability entity which is designed and legally categorized as a seperate entity from the business’s owner(s) so the owner is not personally liable for the financial dealings of a corporation. Logically you can’t say the owner and the corporation are seperate entities when you want to limit liability and then turn around and say the corporation and the owner are the same thing when you want to give the corporation the same religious rights as the owner(s).

Any court that would make such a contradictory ruling is certainly not above finding that a state has religious rights.

Priya Lynn
July 17th, 2014 | LINK

After all, a state is “in some aspects an extension of its citizens”.

Timothy Kincaid
July 17th, 2014 | LINK

Well, I guess we’ll see who is right.

cowboy
July 18th, 2014 | LINK

Same 10th Circuit Court just arrived at the same conclusion for Oklahoma!

Except for this:

Justice Jerome A. Holmes concurred but stressed in his own opinion that the court did not find that voters exhibited legal animus, or dislike, toward gay individuals when they outlawed same-sex marriage in 2004. Justice Paul Kelly Jr. dissented.

Any minute now I expect to hear something from Sotomayor of the SCOTUS. At least before 8:00 a.m. on Monday. We might be celebrating those legal marriages on “hold” in Utah before the weekend starts.

Mark F.
July 18th, 2014 | LINK

Priya said:

“Logically you can’t say the owner and the corporation are separate entities when you want to limit liability and then turn around and say the corporation and the owner are the same thing when you want to give the corporation the same religious rights as the owner(s).”

Sure you can. For example, “The New York Times” has full First Amendment rights to freedom of speech as well as limited liability even though it’s not an actual person. Do you object to that?

Priya Lynn
July 18th, 2014 | LINK

Corporations have some rights, but they don’t automatically have all the same rights as their owner(s) as they are seperate entities. There is nothing inconsistent with a limited corporation having some, but not all, of the same rights as its owner(s).

The plaintiffs in Hobby Lobby argued that the corporation should have the same religious rights they do because they are the corporation – that’s not true if you want to have a limited corporation.

If you want to argue that a corporation automatically has all the same rights as its owner(s) then it necessarily follows that the owner(s) are liable for all the financial dealings of the corporation.

Either the corporation and its owner(s) are seperate entities for the purposes of the law or they are one in the same, you can’t have it both ways.

Priya Lynn
July 18th, 2014 | LINK

What rights or responsibilities a corporation should have is a matter for debate. It doesn’t necessarily follow that a corporation must have all the rights and responsibilities of its owner(s) and the fact that the law allows establishment of limited corporations sets precedent that limited corporations do not automatically have relgious rights just because its owners do

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