Box Turtle Bulletin

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.

Israeli committee votes tomorrow on partnership rights

Jerusalem Post

The Ministerial Committee on Legislation will vote Sunday on a controversial bill that aims to change how homosexual couples are viewed by family courts.

Family courts deal with adoption, divorce, and the recognition of unmarried couples for benefits from the state.

The bill, sponsored by MK Nitzan Horowitz (Meretz), would require family courts to treat same sex couples the same way they treat a man and woman.

Chile elects pro-equality President

On Top

Voters in Chile on Sunday returned former president Michelle Bachelet to power.

The 62-year-old Bachelet fended off center-right candidate Evelyn Matthei by winning 62 percent of a runoff vote – the highest of any candidate since Chile returned to democratic elections.
…
Bachelet also campaigned on gay marriage, reiterating her supporter in several interviews. However, her center-left New Majority coalition has only a slim majority in both houses and a full plate.

Croatian government proposes partnership registry

Croatia began the month with a But the government is proposing that a parnership registry with many of the rights of marriage be adopted. (GayStarNews)

The government has presented ‘life partnership’ legislation today (12 December), allowing same-sex couples to officially register their relationship, inherit property from one another, and represent each other as next of kin.

They will be banned from marrying or adopting children.

With the government’s legislative majority, it means the bill is likely to pass.

The ‘protect marriage’ crowd who crowed three weeks ago will conveniently miss this move.

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.

Roosevelt NM County Clerk resigns

Over next to Texas on the eastern edge of New Mexico is Roosevelt County, about 2,500 square miles of peanuts, Eastern New Mexico University, and not a whole lot else to say for it. But now it has two celebrities. (ABC)

Roosevelt County manager Charlene Webb confirmed that Clerk Donna Carpenter and Deputy Clerk Janet Collins announced their resignations Friday morning.

Webb declined to say why they quit. But county commissioners said it was in protest of Thursday’s Supreme Court ruling declaring it unconstitutional to bar same-sex couples from getting marriage licenses.

Commissioner Bill Cathey said the two had made it clear they would quit “rather than be associated with that.”

If they can’t bring themselves to “be associated with that”, then I respect their decision. If you can’t do the job, step aside so someone else can.

But should they decide that they are the victims and run to Fox News and the Family Research Council to whine about how their own personal religious beliefs could not be dictated to their neighbors, I’ll not be forgiving.

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.

Yeah… about that map

I guess it went up a day too soon.

Utah will likely appeal. But for now marriages are going on and we are now up to 18 States plus DC, a grand total of 120 million US residents, or 39.5% of the population, now live where marriages are equal.

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…

Gov Martinez blows off anti-gay amendment idea

New Mexico Governor Susana Martinez, a Republican, stayed mostly out of the court battle over marriage. She has not been an ally by any means and has made statements about how “the people should vote”. But her advocacy for “traditional marriage” has been minimal and she’s mostly been invisible on the issue.

Mostly, she’s been ambivalent on same-sex couples. Earlier this year she let a bill die (a pocket veto) that would have added “domestic partner” to an occupational licensing bill for veterans, but said that she would have signed it had it included the federal definition of the term.

In that wake of the marriage decision, a handful of conservative GOP members are making noise about amending the constitution. But it seems Martinez wants no part of the divisiveness that such efforts create. (Fox)

Gov. Susana Martinez, a Republican and who has opposed same-sex marriage, said she would have preferred voters deciding the issue rather than the courts. But she urged New Mexicans to “respect one another in their discourse” and turn their focus onto other issues facing the state.

“As we move forward, I am hopeful that we will not be divided, as we must come together to tackle very pressing issues, like reforming education and growing our economy, in the weeks and months ahead,” Martinez said.

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

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.

A map of marriage at the end of 2013

As we close out the last days of the year, 17 states and DC offer full marriage equality (or are waiting for the effective date of legislation):

Massachusetts
Connecticut
Vermont
Iowa
New Hampshire
District of Columbia
New York
Washington
Maryland
Maine
Rhode Island
Delaware
Minnesota
California
New Jersey
Illinois
Hawaii
New Mexico

Three more offer everything-but-the-name Domestic Partnerships

Oregon
Nevada
Colorado

And Wisconsin offers limited Domestic Partnership rights.