Box Turtle Bulletin

Plaintiffs ask SCOTUS not to stay Utah decision

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

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.

Push for equality in Navajo Nation

The Navajo Nation is a semi-autonomous territory slightly larger than West Virginia occupying portions of northeastern Arizona, southeastern Utah, and northwestern New Mexico. About 175,000 Navajo live there, along with some Paiute and Hopi.

Aljazeera discusses an effort to bring marriage equality to the nation.

Alray Nelson, founder of the Coalition for Navajo Equality, says he wants the Navajo Nation to respect gay relationships like two of the states that surround its territory — New Mexico, where gay marriage was legalized this month, and Utah, where it was recently ruled legal but faces a mounting appeal.

“There’s no organized faction against this, like in the fight (for) Proposition 8 in California,” said Nelson, 27, whose organization is seeking to make tribal legislators review a 2005 tribal ban on gay marriage early next year.

Two more Mexican states have same-sex marriages

Mexico’s position on marriage equality is a convoluted one. Same-sex marriages may be conducted in Mexico City and in the state of Quintana Roo, but are recognized across the nation.

One state bans same-sex marriage, a few others offer civil unions, and the rest are in a sort of flux.

A year ago the Mexican Supreme Court ruled that same-sex couples have the civil right of marriage. However, the amparo process is not that of a single universal decision; rather, it speaks specifically to each case and, absent any contrary decisions, eventually and cumulatively gains the weight of law.

Now two more states have contributed to that on-going process, Jalisco and Chihuahua (ai!). From CNN Mexico (with a miserable Google translation)

Zaira de la O and Martha Sandoval will give you the “I do” before a judge in Jalisco on Saturday, becoming the first gay couple in a civil marriage in this state.

The Jalisco Civil Code does not provide for marriage between same sex couples get married but after the fourth Civil District Judge Material, granted them under.

and Diario (equally bad translation)

Accompanied by family and friends, Marco Quiroz and Jaime Villaseñor Gándara Salcido, were married on Friday at 18:00 in the city of Chihuahua. Judge who married in the Registry Office of Chihuahua, explained that because District judge ordered an injunction that marriage promoted by the parties and by the authority conferred by the State, the said united in marriage. “With all the rights that the law gives them, but also with all the obligations that it provides for married “both nodded at each word judge and became the first same-sex marriage in the state of Chihuahua.

It appears that there are four more couples in Chihuahua who wish to marry. If I understand the process correctly (and I don’t claim to), if each is granted an ampara, marriage equality becomes law in that state.

NYT profiles Utah’s “activist judge”

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

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.

No action from Tenth Circuit

As we slide into the final hours before the Christmas holiday, the Tenth Circuit remains closed-lipped about whether or not there will be a stay of Judge Shelby’s ruling. In the meanwhile, county clerks continue to issue marriage licences to same-sex couples, including several clerks who had refused to do so yesterday.

I’m curious as to the delay in announcing their decision. Decisions released in the afternoon before a holiday tend to get little attention and I wonder if this is a consideration (judges are, to some extent, politicians).

My wild hope is that the Tenth Circuit will refuse the stay based on the state’s inability to show any likelihood of winning the appeal. It’s a lot to hope for. But the timing couldn’t be better; by the time anyone pays attention, it will be a week down the road.

Meanwhile in Virginia…

A federal judge allowed a challenge to that state’s marriage ban move forward (wtvr)

A federal court denied a motion from the Staunton Circuit Court Clerk today seeking dismissal of a lawsuit challenging Virginia’s ban on marriage for same-sex couples.
The court today also removed the governor as a named defendant in challenging the case but is allowing it to continue with the other two defendants. They are listed as Staunton Circuit Court Clerk Thomas Roberts, and Janet Rainey, the state registrar of vital records.

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.

Shelby denies stay

Judge Shelby has denied a stay of his ruling on marriage equality. Marriages can continue.

The state will now go back to the Tenth Circuit and ask them to stay the ruling pending appeal. They have said “no” twice, but those denials were based on procedure (a court can issue an emergency stay outside of ordinary procedure – they chose not to). It is difficult to know how the Appellate Court will respond to the third request.

Ohio cannot summarily divorce dead people

A federal judge has issued a ruling that finds Ohio’s ban on gay marriages to be unconstitutional. If you married elsewhere. And are now dead. (AP)

A federal judge has declared in a ruling that applies only to death certificates that Ohio’s ban on gay marriage is unconstitutional.

In his decision Monday, Judge Timothy Black orders state officials to recognize such unions on death certificates. Although his ruling applies narrowly, his statements about Ohio’s gay-marriage ban are sweeping and expected to incite further litigation challenging the law.

I know that jurists prefer to issue the least broad ruling possible, one which directly addresses the case before them but not much further, but wow is this one a narrow ruling.

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.