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Posts for July, 2014

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.

Tenth Circuit Upholds Lower Court Ruling Against Utah’s Marriage Ban

Jim Burroway

June 25th, 2014

In a 2-1 decision, the Tenth Circuit Court of Appeals upheld the December Federal District Court ruling which found that Utah’s ban on same-sex marriage was unconstituional. More significantly, the Appeals Court upheld the use of strict scrutiny in affirming the lower court’s decision. The appeals court also issued a stay pending an expected review by the U.S. Supreme Court. Writing for the majority, Judge Carlos Lucero begins his 65-page opinion:

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court.

We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and—by legislature-initiated action—the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State “will not recognize, enforce, or give legal effect to any law” that provides “substantially equivalent” benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code § 30-1-4.1. These laws were also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. …

Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA”), United States v. Windsor, 133 S. Ct. 2675 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?

Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.

The Appeals Court turned to the Windsor decision, quoting from it extensively because “the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored.” It also cited Griswold v. Connecticut and Loving v. Virginia, among a number of other cases, in agreeing that marriage is a fundamental right.

We must reject appellants’ efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are “not the principal interests the State pursues by regulating marriage.” Rather than being “[m]utually exclusive” of the procreative potential of marriage, these freedoms—to choose one’s spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring commitment to remain together through thick and thin—reinforce the childrearing family structure. Further, such freedoms support the dignity of each person, a factor emphasized by the Windsor Court.

The Appeals court nails the “procreative” argument, and cites Justice Scalia for good measure:

Instead of explaining why same-sex marriage qua same-sex marriage is undesirable, each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”). Same-sex marriage  cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biological parents, are free to marry. See Utah Code § 78B-6-139 (adoptive parents have same rights and duties). As are opposite-sex couples who choose assisted reproduction. See §§ 78B-15-701 to 707 (providing rules for parental rights in cases of assisted reproduction); §§ 78B-15-801 to 809 (providing rules governing gestational agreements)

But that’s not to say the child-rearing is irrelevant to the question of whether same-sex couples should be allowed to marry:

The Court has repeatedly referenced the raising of children—rather than just their creation —- as a key factor in the inviolability of marital and familial choices. … Although cohabitating same-sex couples are prohibited from jointly adopting children under Utah law as a result of the same-sex marriage ban, Utah Code § 78B-6-117(3), the record shows that nearly 3,000 Utah children are being raised by same-sex couples. Thus childrearing, a liberty closely related to the right to marry, is one exercised by same-sex and opposite-sex couples alike, as well as by single individuals.

Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determina[nt] of the existence of a family.” Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843 (1977). …. As the Court in Windsor held, restrictions on same-sex marriage “humiliate[] tens of thousands of children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694. Such statutes “bring[] financial harm to children of same-sex couples . . . raise[] the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses” and “den[y] or reduce[] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” Id. at 2695. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.

One argument that is often put forward by same-sex marriage opponents — and was put forward by the state of Utah — is that children “deserve” a mother and a father because “men and women parent children differently.” The Appeals Court quickly dispensed with that trope:

But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encouraging gendered parenting styles. The state does not restrict the right to marry or its recognition of marriage based on compliance with any set of parenting roles, or even parenting quality. … Instead, every same-sex couple, regardless of parenting style, is barred from marriage and every opposite-sex couple, irrespective of parenting style, is permitted to marry. … As with appellants’ asserted procreation rationale, we are offered no coherent explanaiton for the state’s decision to impose disabilities only on one sublclass of those sharing a claimed deficiency.

Judge Jerome A. Holmes joined Lucero in the majority oppinion. In Judge Paul J. Kelly, Jr.’s dissent, he took a hard line against the majority’s ruling. He held that the 1971 Baker v. Nelson, in which the U.S. Supreme Court summarily dismissed an early challenge to Minnesota’s law banning same-sex marriages, “foreclose the Plaintiffs’ claims, at least in this court.” Ignoring Windsor, he wrote that “A summary dismissal is a merits determination and a lower federal court should not come to an opposite conclusion on the issues presented.” He disagreed with the majority’s affirmation that Utah’s marriage ban violated the Equal Protection Clause or the Due Process Clause. He also argued that marriage was not a fundamental right because “were marriage a freestanding right without reference to the parties,Utah would be hard-pressed to prohibit marriages for minors under 15 and imposeconditions for other minors.” He also appealed to “tradition” in disagreeing with the majority’s ruling:

First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a “right to interracial marriage,” or a “right to inmate marriage” cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United Stateshistory and tradition, and a careful and precise definition of the right at issue. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Thus, contrary to Plaintiffs’contention, Aplee. Br. at 34 n.5, it is entirely appropriate for the State to characterize the right sought as one of “same-gender marriage” and focus attention on its recent development. Perhaps someday same-gender marriage will become part of this country’shistory and tradition, but that is not a choice this court should make.

Judge Kelly’s dissent soon begins to look more like something from the Family Research Council in his willful refusal to acknowledge evidence in defending his position:

No matter how many times we are reminded that (1) procreative ability and effective parenting are not prerequisites to opposite-gender marriage (exclusion of same-gender couples is under-inclusive), (2) it is doubtful that the behavior of opposite-gender couples is affected by same-gender marriage (lack of evidence), (3) the evidence is equivocal concerning the effects of gender diversity on parenting (lack of evidence) and (4) the present scheme disadvantages the children of same-gender couples (exclusion is over-inclusive), the State’s classification does not need to be perfect. It can be under-inclusive and over-inclusive and need only arguably serve the justifications urged by the State. It arguably does.

…The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs oneither side to know that the State’s position is (at the very least) arguable. It mostcertainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe. Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, child-rearing, and caution rationales,that prerogative belongs to the electorate and their representatives. …(plurality opinion). We should resist the temptation to become philosopher-kings,imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.

Utah Backs Away from Regnerus Study

Jim Burroway

April 10th, 2014

A brief filed last month by attorneys representing the State of Utah in its same-sex marriage appeal cited Mark Regnerus’s discredited study purporting to show that children raised by gay “parents” fared worse than children raised by straight parents. (In fact, Regnerus’s study consisted of only two children who had been raised from birth by same-sex parents; both children did “pretty good,” Regnerus admitted during his disastrous testimony before a Michigan court.) In the Utah brief, attorneys included Regnerus’s study as demonstrating that “even when they have two caregivers of the same sex, children who grow up without a father or a mother are socialized in a way that undermines their ability to function effectively in a dual-gender society.” They add, in a footnote:

Professor Regnerus’ study has been criticized by advocates of the “moms-and-dads-are-interchangeable” theory. But in his thorough response, he concludes that, even accounting for his critics’ concerns, the data “still reveal numerous differences between adult children who report maternal same-sex behavior (and residence with her partner) and those with still-married (heterosexual) biological parents.

That brief was filed in February. Regnerus was fully shellacked on the witness stand in Michigan a month later. And when the ruling came down that Michigan’s ban on same-sex marriage was unconstitutional,  US District Court Judge Bernard Friedman devoted several pages to smacking down Regnerus’s testimony and study.

So now it looks as though that whole episode has left the Utah lawyers feeling nervous. Yesterday, just a day before this morning’s oral arguments, they filed a “Supplemental Authority clarifying position re: Regnerus study”:

Utah files this supplemental letter in response to recent press reports and analysis of the study by Professor Mark Regnerus, which the State cited at footnotes 34 and 42 of its Opening Brief, and which addresses the debate over whether same-sex parenting produces child outcomes that are comparable to man-woman parenting.

First, we wish to emphasize the very limited relevance to this case of the comparison addressed by Professor Regnerus. As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.

Second, on the limited issue addressed by the Regnerus study, the State wishes to be clear about what that study (in the State’s view) does and does not establish. The Regnerus study did not examine as its sole focus the outcomes of children raised in same-sex households but, because of sample limitations inherent in the field of study at this point, examined primarily children who acknowledged having a parent who had engaged in a same-sex relationship. Thus, the Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.

So get this: Utah is going to argue that allowing gay people to marry will have a long-term impact on children of heterosexual parents.  Umm, yeah. Good luck with that.

The Daily Agenda for Thursday, April 10

Jim Burroway

April 10th, 2014

TODAY’S AGENDA:
Tenth Circuit Court to Hear Utah Marriage Case: Denver, CO. Last December, Utah’s same sex couples got an early Christmas Present when Federal District Judge Robert J. Shelby found the state’s ban on same-sex marriage violated the U.S. Constitution’s guarantees of equal protection and due process. Particularly satisfying to marriage equality advocates was seeing Judge Shelby quoting extensively from U.S. Supreme Court Justice Antonin Scalia’s blistering dissent of  Windsor v. U.S., in which the high court struck down Section 3 of the Defense of Marriage Act. Judge Shelby also declined to stay his ruling pending an appeal, and by the time the U.S. Supreme Court issued its stay more than two weeks later (after the Tenth Circuit refused to do so), more than 1,300 Utah same-sex couples were legally married. The Obama Administration announced that the Federal government would recognize those couples’ marriages, and the Utah State Tax Commission said that couples who filed their taxes as married on their Federal forms would be allowed to file the state taxes jointly.

Meanwhile, the Utah Attorney General’s office has hired outside counsel to represent the state’s appeal to the Tenth Circuit Court, which will hear oral arguments today in the case of of Herbert v. Kitchen. The oral arguments will be heard by a three judge panel consisting of Judge Paul Kelly (a George H.W. Bush appointee), Judge Carlos Lucero (a Clinton appointee), and Judge Jerome Holmes (a George W. Bush appointee). Judge Holmes was one of two Tenth Circuit judges who refused to issue a stage of Judge Shelby’s ruling in December. The court has banned all audio and video recordings, as well as live “blogging, tweeting, emailing or any other broadcast mechanism or wireless communication.” The court will post full audio on Friday. Oral arguments are scheduled to begin this morning at 10:00 a.m. MDT.

Events This Weekend: Women’s Fest 2014, Camp Rehoboth, DE; Virgin London Marathon, London UK; Miami Beach Pride, Miami Beach, FL.

TODAY’S AGENDA is brought to you by:

From Wilde Side (a New Englad gay bar guide), September 1, 1976, page 20.

 

TODAY’S BIRTHDAYS:
James Ogilvy, 7th Earl of Findlater, 4th Earl of Seafield: 1750-1811. The Scottish peer and landscape architect is known for his lavish British landscape garden designs in mainland Europe, where he spent most of his life. Some say he was exiled to Europe, but others say it was voluntary. In either case, the cause of his exile appears to be related to his homosexuality which, while a capital offense in Britain, was somewhat more tolerated on the mainland as long as things were kept discreet. And besides, they did like his gardens, particularly in Carlsbad, Bohemia, where he became a major patron of the city’s charities and parklands. Findlater trail is still well-used today.

In 1803, Findlater’s private secretary, Johan Georg Fischer purchased Helfenberg Manor near Dresden on Findlater’s behalf. Its lands gave Findlater yet another opportunity to create a garden of considerable renown. Findlater died in 1811, and his will named Fischler his sole heir. Findlater’s family in Scotland contested the will on the grounds that it was made “for a base cause,” suggesting an unspecified immorality between the two. The lawsuit created a huge scandal, but Findlater’s relatives were partly successful, having been awarded Findlater’s lands and estate in Scotland. Fisher remained at the estate in Dresden until his own death in 1860, when he was buried alongside Findlater at the Loschwitz parish church.

Frances Perkins: 1880-1965. There’s no doubt that Franklin Delano Roosevelt’s New Deal forever changed America, mostly for the better. But what isn’t well known is that the individual responsible for the lion’s share of the New Deal’s enduring legacy was Frances Perkins, who, as Secretary of Labor, already made history by becoming the first woman cabinet secretary barely thirteen years after the Nineteenth Amendment guaranteed women the right to vote. Lesser-known still was the fact that by being a woman, Perkins broke an important code in Washington society, one in which a Cabinet secretary was expected to guests to his home with his wife playing the role of gracious host, which entailed a lot of planning, coordinating, preparations, etc. Perkins, having no wife, could not be expected to perform all of those functions while also still put in a full day’s work as Labor Secretary. Perkins’s husband was of no use; he was permanently sidelined with debilitating mental illness. But her special friend, railroad heiress Mary Harriman Rumsey, came to the rescue, with a finely-appointed Georgetown home which the two shared, and where the consummate power-couple hosted dinner parties said to include Eleanor Roosevelt, Will Rogers, Margaret Bourke-White, Gen. Douglas MacArthur, and unknown Appalachian folk singers.

Perkins became interested in labor issues while in New York, where she personally witnessed the tragic Triangle Shirt Factory Fire of 1911. The fire killed 147 young men and women, mostly seamstresses, who were unable to escape because the owner locked the exists for fear that feared theft from his employees. Perkins joined a commission that investigated the fire and recommended changes to the state’s labor laws. She then served in several labor-related commissions in state government under Gov. Alfred Smith. When Franklin D. Roosevelt was elected governor in 1929, Perkins served as his first State Commissioner of Labor. It would only be natural, then, that Perkins would follow him to Washington as his Labor Secretary when FDR was elected President.

Frances Perkins on the cover of Time, Aug 14, 1933.

When Perkins arrived in D.C., she was brimming with ideas. She saw hundreds of thousands of productive, employable people who were out of work, and she came up with an unemployment insurance fund which would be paid into during good years and drawn from in bad. She saw the elderly, no longer able to work, being thrown out of their homes after draining their life savings, and thought that there ought to be some kind of a social security that could protect them. She saw companies hiring children instead of adults to cut costs, children who should be in school and not supporting their families, and argued that child labor laws were needed. And with FDR’s backing, she set about putting those ideas into action.

Perkins’s most enduring legacy, Social Security, came about during a particularly trying time. While struggling to meet a Christmas 1934 deadline for her committee to complete its work designing the system, Rumsey died on December 19 from complications from a fall from a horse. Amid the intense political pressure of designing a brand-new federal program, Perkins also was mourning Rumsey’s death, quietly and alone. And so on the very same week Rumsey died, Perkins called the committee members to her home — a home she would soon lose because only Rumsey could afford the rent — sat a bottle of Scotch on the table, and announced that no one would leave that night until the work was done.

As Labor Secretary, Perkins oversaw the creation of the Civilian Conservation Corps and the Federal Works Agency. She established the minimum wage and the forty-hour work week through the Fair Labor Standards Act. Perkins remained Labor Secretary for all four terms of FDR’s presidency. In 1945, President Harry Truman asked her to serve in the Civil Service Commission, a post that she held until 1952 when her husband finally died. After her career in government service, she taught at Cornell until her death in 1965 at the age of 85.

Perkins’ parents were Maine natives, and that’s where she was buried. It’s also where an eleven-panel mural celebrating labor throughout history — including colonial shoe cobblers, lumberjacks, “Rosie the Riveter, striking paper mill workers, and Frances Perkins in a conversation with a family — was on display at Maine’s Department of Labor. In 2011, Maine’s tea-party governor, Paul LePage, ordered the mural’s removal. His spokesman claimed that the mural was reminiscent of “communist North Korea where they use these murals to brainwash the masses.” LePage also ordered the re-naming of seven conference rooms, including one originally named for Perkins.

[Source: Kirsten Downey. The Woman Behind the New Deal: The Life and Legacy of Frances Perkins, Social Security, Unemployment Insurance, (New York: Anchor Books, 2010)]

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

Utah to allow married tax filings for same-sex couples

Timothy Kincaid

January 16th, 2014

Just when you thought it couldn’t get any more confusing, the Utah State Tax Commission has announced that same-sex couples who receive Federal recognition as “married” for income tax purposes may also file their Utah State Income Taxes jointly.

2013 UTAH INDIVIDUAL INCOME TAX RETURNS

Same-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return as provided in Utah Code § 59-10-503. Eligible married couples may file a joint return if they are married as of the close of the tax year. (As of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court’s injunction).

This applies only to the 2013 tax year.

Views about marriage in Utah

Timothy Kincaid

January 14th, 2014

They might not be what you think they are. From the Salt Lake Tribune:

Residents are now evenly split on whether same-sex couples in Utah should be allowed to get state-issued marriage licences — 48 percent for and 48 percent against — and nearly three-fourths (72 percent) said same-sex couples should be allowed to form civil unions or domestic partnerships in lieu of marriage.

NYTimes takes on Utah’s no-gay-marriage arguments

Timothy Kincaid

January 13th, 2014

The New York Times takes on the arguments (three, so far) presented by the state of Utah as to why their ban on same-sex couples marrying is a legitimate state interest. It’s quite funny. Here’s their take on the second argument:

In the Supreme Court, state officials changed tack. They pressed a different argument, one built on a contested premise.

“A substantial body of social science research confirms,” the brief said, “that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.”

Lawyers for the couples challenging Utah’s ban on same-sex marriage responded that the assertion “is not true.” For evidence, they cited “the scientific consensus of every national health care organization charged with the welfare of children and adolescents,” and listed nine such groups. The view of the groups, the challengers said, “based on a significant and well-respected body of current research, is that children and adolescents raised by same-sex parents, with all things being equal, are as well-adjusted as children raised by opposite-sex couples.”

Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.

Feds will recognize Utah marriages

Timothy Kincaid

January 10th, 2014


In another twist in the Utah marriage battle, the Federal Government has weighed in on the legality of the nuptials performed in Utah’s marriage window. (NYTimes)

The Obama administration on Friday said that it would recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Mr. Holder said in the video. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

This should not be seen as an affront to Utah. It is completely consistent with something that the state’s Attorney General said on Wednesday: (Fox13)

“I want to be clear that we are not saying those marriages are invalid,” Reyes said in an interview Wednesday with FOX 13. “However, as a state we cannot recognize those marriages.”

Reyes insisted that by refusing to recognize the marriages, the state was not effectively invalidating the unions by pointing to other states that recognize same-sex marriages.

“It’s not invalidating it in the same way that if they went to Hawaii, they could potentially apply for benefits there based on the marriage that took place. They can’t be recognized (here),” he said. “There is a very fine distinction, but a very important distinction based on those two things.”

It does, however, help force the hand of the courts a bit. To find that these marriages are invalid and had “never occurred” would be to cause a flood of confusion and administrative nightmares.

Hundreds of couples will be filing Federal income tax returns as married couples, there are likely even some who have made legal changes to their names and who will – by the time of the decision – have signed legal documents or established credit as married couples, and even some may have moved to states in which their marriages are fully recognized and may have availed themselves of state services.

Utah’s rather odd ruling about married couples

Timothy Kincaid

January 8th, 2014

On December 20, 2013, Judge Richard Shelby determined that the anti-gay marriage laws of the State of Utah were in violation of the equal protections clause of the United States Constitution. And, as Shelby refused to grant a stay, same-sex marriages began immediately.

The state requested that the Tenth Circuit Court of Appeals grant a stay, and their request was denied. Finally, a request to the US Supreme Court resulted in a stay of Shelby’s ruling, but about 1,000 same-sex couples had married by the time that county clerks were instructed to deny new applicants for marriage licenses.

Now the state has issued instructions on how state services are to treat the married couples. It is a most inelegant decision:

Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

In addition to being awkward and placing same-sex couples in extreme legal confusion, this may have been a strategic misstep on the part of the state. It places Utah in the position of treating people in exactly the same situation (same-sex couples married under Federal authority) in disparate ways.

The second problem with the Attorney General’s decision is that in many ways this closely mirrors the Proposition 8 scenario. In Hollingsworth v Perry, the Ninth Circuit found that you cannot grant rights to a group of people and then take those rights away. Here the state granted specific rights to married same-sex couples and then swooped in and took those specific rights away. And while the Ninth Circuit decision does not create precedent in the Tenth Circuit, it nevertheless will be given consideration.

Had Utah simply said, “if you got married, you are married; if you didn’t, you are not”, that would have been a clean and simple ruling. But by taking a “we will not give you one iota of protection that we haven’t already processed” stance, the state demonstrates a significant degree of hostility. And by doing so, they have strengthened both our argument that the banning of same-sex marriage is rooted in animus and our call for heightened scrutiny in legal decisions.

SCOTUS issues Utah stay (Updated)

Timothy Kincaid

January 6th, 2014

NYTimes

The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):

HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”

The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.

Utah Marriage Opponents Call For “Uprising”

Jim Burroway

January 6th, 2014

Okay, if you thought the poor guy on a hunger strike was off his rocker, now we have a room full of people who got together on Saturday to call for an “uprising” against same-sex marriage in Utah. Former Graham County, Arizona, sheriff Richard Mack, a (thankfully) former officer of the law with almost no concept of how the U.S. Constitution works, saying things like this:

Mack says that the federal government’s ruling doesn’t overrule Utah’s laws.

“That’s a lie. That’s an absolute lie. We have a right to raise our kids without homosexuals being part of the Boy Scouts, the schools and teachers and doing everything. They can be all that, but don’t shove your agenda down my kid’s throat. We have a right to raise our kids how we want not how you want,” Mack said.

Mack and Eager urge citizens to call upon their local leaders because change will come from the bottom-up.

“The way you take back freedom in America is one county at a time. The sheriffs need to defend the county clerks in saying, ‘No, we’re not going to issue marriage licenses to homosexuals,’” Mack said.

Mack used the cramming-down-our-throats metaphor twice. I snickered twice. Don’t these people even listen to themselves when they speak?

Mack may be a clown, but he’s well known in nullification circles. After Graham County voters voted turned him out of office, Mack founded the Constitutional Sheriffs and Law Enforcement Officers Association. He now goes around the country speaking to various militias, Tea Party groups, John Birch Society, and radical right talk radio arguing the supremacy of sheriffs over other law enforcement authorities, including (and perhaps especially) those of the federal government. The Southern Poverty Law Center profiled him in 2012.

Utah man starves himself to oppose equality

Timothy Kincaid

January 3rd, 2014

Trestin Meacham has convinced himself that the State of Utah could get rid of gay marriages by simply declaring the Federal Judge’s decision null. Although the Supreme Court has ruled many times that states cannot nullify decisions that fall under the US Constitution (the Supremacy Clause), Meacham insists otherwise.

And the erstwhile Constitutional Party candidate has vowed not to eat until Utah nullifies Judge Shelby’s ruling, subsisting only just water and “an occasional vitamin”.

I’m not sure that I believe Meacham. He says he’s lost 20 pounds since the decision, but he’s still up walking around and that seems a bit suspect to me. Twelve days without food is a very very long time.

But, since Utah isn’t going to go with his wacky hypotheses, I guess he’ll either he’ll break his fast, be institutionalized, or die.

Plaintiffs ask SCOTUS not to stay Utah decision

Timothy Kincaid

January 3rd, 2014

WaPo

Supreme Court Justice Sonia Sotomayor should ignore Utah’s request for a temporary ban on gay marriages, attorneys representing gay couples argued in a Friday morning filing.

“Forcing same-sex couples and their families to wait and hope for the best during the pendency of this appeal imposes an intolerable and dehumanizing burden that no family should have to endure,” James Magleby and Peggy Tomsic, attorneys at Magleyby and Greenwood argued in the filing.

It isn’t certain when Sotomayor will respond or if she will instead take the stay request to the full court.

One of the reasons that the State of Utah gave for seeking the stay (and one of their arguments as to why they assert they would win on appeal) is that same-sex marriage is one of them there newfangled gadgets and not “deeply rooted in the nation’s history and tradition.” Which reminds me of this paraphrase of Nathaniel Hawthorne:

Tradition sometimes brings down truth that history has let slip, but is oftener the wild babble of the time, such as was formerly spoken at the fireside and now congeals in websites.

Utah files stay request with SCOTUS

Timothy Kincaid

December 31st, 2013

The State of Utah has now requested that the Supreme Court halt the ongoing issuance of same-sex marriage licenses that have been occurring since their ban on same-sex marriage was ruled unconstitutional by federal Judge Richard Shelby (that wascally wepublican “activist judge”).

USA Today:

In papers filed Tuesday with Justice Sonia Sotomayor, the state asked her to overturn court decisions to let the marriages go forward. Sotomayor handles emergency requests from Utah and other Rocky Mountain states. She can act by herself or get the rest of the court involved.

As the stay request was filed hours before the New Year holiday, I’m curious to see what argument they made to convince Sotomayor that the federal judges in the Tenth Circuit abused their discretion.

NYT profiles Utah’s “activist judge”

Timothy Kincaid

December 30th, 2013

The New York Times has run an informative, though not particularly thorough, article about Judge Robert Shelby, the Federal judge who found that the state of Utah’s ban on same-sex marriage violated the US Constitution.

He had been a combat engineer in the Persian Gulf conflict and was, according to state voter records, a registered Republican. Senator Orrin G. Hatch, a seven-term Utah Republican, recommended him for a federal judgeship, calling him an experienced lawyer “with an unwavering commitment to the law.” Senator Mike Lee, a Tea Party Republican, said that Mr. Shelby was “pre-eminently qualified” and predicted he would be an outstanding judge.

He was active in the state and local bar associations, and was a leader in a group that mentors young trial lawyers. But he largely stayed out of the spotlight and away from politics. In 2010, he and his wife gave a $50 contribution to a Republican candidate for the State Legislature — the only political donation found in state and national campaign-finance databases.

Former colleagues said they did not know his religious background. The judge did not respond to emails and a phone call requesting an interview.

Utah’s SCOTUS appeal is delayed

Timothy Kincaid

December 26th, 2013

The next step for the State of Utah in their quest to halt same-sex marriages is to appeal to the Supreme Court for a stay on enforcing Judge Richard Shelby’s ruling overturning the state’s constitutional amendment banning marriage equality. But while I expected that to happen immediately this morning, it seems that there will be a delay. (fox13)

A spokesman for the Utah Attorney General’s Office told FOX 13 the office is not expected to file an emergency request with the U.S. Supreme Court to halt same-sex marriage licenses from being issued “for a few days.”

The state had said Tuesday it would file a request with U.S. Supreme Court Justice Sonia Sotomayor, after the 10th U.S. Circuit Court of Appeals in Denver rejected the request. On Thursday, attorney general’s spokesman Ryan Bruckman said the office was coordinating with outside counsel before proceeding.

Having finally recognized that they are completely inept and that they have bungled every step of the way, the state is now seeking to craft a request that will speak to the concerns of the Supreme Court justices.

But after a week of equality and a thousand marriages, getting a stay may be increasingly difficult with each day that passes.

Why the Tenth denied stay

Timothy Kincaid

December 25th, 2013

As important as the fact that the Tenth Circuit denied the state of Utah’s request for stay from Judge Shelby’s ruling that the state’s gay-marriage ban is unconstitutional, is the reason they did so.

A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001); 10th Cir. R. 8.1. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. Nken v. Holder, 556 U.S. 418, 434-35 (2009).

Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.

In other words, the Tenth Circuit looked primarily at two things. They asked themselves if the state was likely to succeed on appeal and found the answer to be “no”. And they took the state’s chief argument for stay – that allowing marriages now will harm the gay people who will only have their marriages reversed later – and said “we don’t think so.”

We don’t know why the Court delayed responding until so late in the day. It may be that they made efforts to determine or ponder the general feeling of the other circuit members. But even if not, considering that the two judges considering stay, Holmes and Bacharach, are among the conservative members of the Tenth Circuit, this may bode well for the appeal.

Tenth Circuit says “no” to a stay

Timothy Kincaid

December 24th, 2013

The Tenth Circuit Court of Appeals has given the state of Utah it’s answer. They will not stay Judge Shelby’s ruling.

Merry Christmas!

Now they will petition Justice Sotomayor for a Supreme Court stay. But in the meanwhile marriage moves on.

Utah update

Timothy Kincaid

December 23rd, 2013

As you know, Judge Shelby refused to issue a stay to his ruling. And while he didn’t exactly call the state officials idiots, he did politely point out that is was their own fault that no stay was considered on Friday. (QSaltLake)

[State's attorney] Lott gave the example of then-District Judge Vaughn Richard Walker deciding to stay his ruling at the same time he ruled against California’s Proposition 8.

Shelby explained the difference between what happened in that court and why it didn’t happen in this court.

“There was no motion for a stay pending when I made my ruling,” he said. “When Judge Walker ruled, the plaintiffs had filed a motion to stay the ruling in case it didn’t come down their way.”

There was no such motion filed by the State of Utah before Shelby made his ruling.

“I had no authority to rule on a temporary stay,” he explained.

By the time that the state came in to ask for a stay, they were no longer protecting the status quo. Now the rules of the game had shifted and marriage was the status quo.

So the state has now requested that the Tenth Circuit issue a stay, and the courts gave the plaintiffs (our side) until 5:00 to file a brief as to why no stay should be granted. Unlike the DA’s office, it is highly likely that the arguments were prepared long ago and only needed to me amended to take on the ‘status quo’ arguments.

Meanwhile, today is the day that Governor Herbert decided to appoint a new State Attorney General. The previous Attorney General resigned in November in a corruption scandal and the marriage filings were conducted by acting Attorney General Brian Tarbut.

Interesting side note, acting Attorney General Brian Tarbut had been the commander of the Utah State National Guard having worked his way up the rank. Also in the Utah State National Guard for eight years, leaving about the time that Tarbut assumed control, was Robert Shelby, the judge in this case.

It is impossible to predict whether the Tenth Circuit will now grant the state a stay. Nor do we know when it is that they will decide.

However, we do know that they will be considering “the factors that must be established to be entitled to a stay pending appeal.” In other words “this is controversial and we don’t like it” will not be sufficient for these judges. It is expected that they will need to be convinced that the state has a good chance of winning and that if no stay is granted that the state will be harmed.

But irrespective of the stay or whether the ruling is reversed, It is estimated that around 800 couples have married on Friday and today.

And those who refused to issue licenses may find that obstinance is not always a winning trait. After being denied a license by a lesbian couple, the County Clerk of Utah County has been sued. Should a stay be granted and this couple were unable to get a license elsewhere, he may find himself with a rather serious civil rights lawsuit on his hands; there is no confusion whatsoever about whether an un-stayed ruling by a federal judge should be followed.

Utah asks pretty please, 10th again says no

Timothy Kincaid

December 23rd, 2013

It appears that the state of Utah again asked the Tenth Circuit to stay the ruling of Judge Shelby until Judge Shelby rules on the stay. And the Tenth Circuit said, “ahem, perhaps you aren’t listening closely enough.”

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