Box Turtle Bulletin

Utah’s SCOTUS appeal is delayed

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

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

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

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

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.”

Long line at Salt Lake County building

When the county clerks prepared to open across Utah, lines of same-sex couples seeking marriage licenses were waiting. In Salt Lake City the line runs around two floors. (Equality Utah)

In a few minutes, Judge Shelby will hear argument for staying his ruling.

UPDATE:

At the moment Judge Shelby has heard argument why his ruling should be stayed until appeal and is taking a little break to ponder the matter. In the meanwhile, marriages continue.

Utah marriages are on for Monday morning

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.

Utah update

Yesterday over 100 couples married in Salt Lake City but the doors closed – two hours after schedule – and many couples were turned away. And, it seems, two couples were married in Washington County (population 145,000) yesterday. Most counties refused to issue licenses because “they were waiting for directions from the state”.

Today the Weber County Clerk decided to open his office so as to make things easier on Monday. When word got out, about 1,000 people showed up. Then the Weber County officials told him that opening on Saturday would “violate equal protection provisions” (because you can ban gays for years but opening on Saturday for both gay and straight couples is unfair to the heteros) and for security reasons (cuz of rampaging radical militant homosexuals, I suppose). So he apologized but kept his doors closed.

On Monday, the County Clerk’s office in Salt Lake and other counties will open at 8:00 am. Cache, Salt Lake, Washington and Davis Counties are among those expected to start issuing licenses at that time.

At 9:00 am, Judge Shelby – who issued the ruling – has scheduled a hearing for the state to present its case as to why a stay should be held on the ruling. I think it is unlikely that the judge will issue a stay.

When the Judge says no (as I expect) the state will request that the Tenth Circuit put a stay on the ruling until appeal. This may be more likely.

Meanwhile, the state has asked the Tenth Circuit for an emergency stay just until Shelby hears their request for stay (to cover, I suppose, the hours between 8:00 and 9:30ish). There has been no word yet on the Tenth’s decision.

Unless the Tenth steps in, there will be a window on Monday morning and likely long lines will start before the office opens.

It is possible that the Tenth Circuit will, somewhere down the road, overturn Judge Shelby’s ruling. It is also possible that the marriages conducted on Friday and possibly on Monday morning will be invalidated. However, as these couples will have availed themselves of Federal benefits in the meantime – including tax filings – that is extremely unlikely.

Thank Scalia For Utah Marriages

Congrats to my sister, their two children and "new" sister in law on their marriage today! #utpol pic.twitter.com/6sW4andQhb

— Adam Gardiner (@agardiner14) December 21, 2013

Court Judge Robert J. Shelby, in striking down Utah’s constitutional amendment banning same-sex marriage, gave this shout-out to everything-gay opponent and U.S. Supreme Court Justice Antonin Scalia’s dissent in Windsor v. U.S., in which the Court struck down Section 3 of the Defense of Marriage Act. Shelby’s first shout-out is at page 13:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare. . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with JusticeScalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Also, at page 15:

…And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: “I do not mean to suggest disagreement … that lower federal courts and state courts can distinguish today’s case when the issue beforethem is state denial of marital status to same-sex couples.”

Judge Shelby also goes to Scalia’s classic dissent in 2003’s Lawrence v. Texas, which struck down sodomy laws nationwide. At page 31:

The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribingthat conduct, . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

 Id. at 604-05 (Scalia, J., dissenting) (citations omitted).The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.

Efforts to Block Utah Marriages May Take Several Days

Typically when there’s a ruling like this one, there’s nearly always an immediate request for a stay. But the Utah Attorney General’s office is taking its time putting the request together. Good thing, because the Judge has said that he’s going to take his time when it comes time to consider the request:

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.

Utah’s elected Attorney General John Swallow resigned last month in the wake of multiple corruption investigations. The office is now headed by an acting Attorney General, retired National Guard Gen. Brian Tarbet.

Who is that activist judge?

“I am very disappointed an activist federal judge is attempting to override the will of the people of Utah,” said GOP Utah Governor Gary Herbert.

But who is that judge and how did he get there? And why, oh why, didn’t any good conservatives try and make sure he never got to power.

Oh. It turns out that Robert Shelby was appointed by President Obama after being nominated by Senator Orrin Hatch (R – Utah) and supported by Senator Mike Lee (R – Utah). I guess that makes them radical militant left-wing GOP Senators.

Utah AG To Appeal, Seeking Stay Against Marriage Ruling (Updated)

They keep coming down to county building. #samesexmarriage #utah @fox13now pic.twitter.com/LOhjlJaKsd

— Annie Cutler (@annie_cutler) December 20, 2013

The Utah Attorney General’s office says that it will seek an emergency stay against the ruling by U.S. District Court Judge Robert J. Shelby finding the state’s ban on same sex marriage unconstitutional. The AG office issued this brief statement:

The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit. The state is requesting an emergency stay pending the filing of an appeal. The Attorney General’s Office will continue reviewing the ruling in detail until an appeal is filed to support the constitutional amendment passed by the citizens of Utah.

Gov. Gary Herbert (R) has also issued a brief statement:

“I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah.”

ABC news reports that “dozens” had already lined up at the Salt Lake County clerk’s office, including State Sen. Jim Dabakis and his longtime partner, Stephen Justesen. Salt Lake City mayor Ralph Becker is on hand to officiate:

Mayor Becker marrying Senator Jim Dubakis and his now husband. #slc pic.twitter.com/JXmksTu8oE

— Seth Anderson (@jsethanderson) December 20, 2013

The LDS has reacted to the ruling:

Cody Craynor, a spokesman for The Church of Jesus Christ of Latter-day Saints, released the following statement in response to the ruling.

“The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman and we are hopeful that this view will be validated by a higher court.”

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

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. 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…

Yes! It’s Happening. Right Now. In Utah!

Me and my new husband!! My polygamous Mormon great grandparents would be so proud! pic.twitter.com/82xyh9GJoS

— Seth Anderson (@jsethanderson) December 20, 2013

Earlier:

@ACLUaz we are at the office now. DA just walked in. In a meeting now. We were told to hang tight for 20 min

— Seth Anderson (@jsethanderson) December 20, 2013

Everyone in the office is so supportive

— Seth Anderson (@jsethanderson) December 20, 2013

This is happening pic.twitter.com/uTuq1peV9m

— Seth Anderson (@jsethanderson) December 20, 2013

People are crying. This is happening

— Seth Anderson (@jsethanderson) December 20, 2013

Marriage licenses available right now in Salt Lake City

About four miles down State Street from the Mormon Temple is the Salt Lake County Government Center. And if any of the apostles want to take a little break from church duties to dash over to see the County Clerk, they can pick up a marriage license right now to marry a person of the same sex.

Deseret News

Within hours, Salt Lake County District Attorney Sim Gill confirmed that, in light of the ruling, he saw no reason to prohibit Salt Lake County Clerk Sherrie Swensen from issuing marriage licenses to same-sex couples.

“We’ve advised Sherrie Swensen that she should proceed — as of right now … she should be processing those applications like she would of anyone else,” Gill said around 3 p.m. “As of right now, if somebody gets in line and applies, there is no prohibition against it as a matter of law right now.”

And couples are getting married.

Utah marriage ban found unconstitutional

It’s coming fast and furious this week. (SL Trib)

A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.

“The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” wrote U.S. District Court Judge Robert J. Shelby. “Accordingly, the court finds that these laws are unconstitutional.”

No one expected anything on this case before next month.

From the ruling

The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.
…
Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

UPDATE:

There is no stay on this ruling (as of yet) and there is no required delay between application and ceremony, so expect Utah marriages immediately.