Box Turtle Bulletin

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.

Utah values

The Democratic candidate for Governor of the great state of Utah has clarified that he doesn’t support Democratic values. He supports Utah Values. Ya know, the ones that are passed down from the Prophet. (Salt Lake Tribune)

Democratic gubernatorial candidate Peter Cooke launched a pre-emptive strike Monday, distancing himself from his party’s national platform, declaring his opposition to gay marriage, civil unions and abortion and vowing to represent “Utah values.”

Cooke said his opposition to gay marriage stems from his faith ­— he is a member of The Church of Jesus Christ of Latter-day Saints, which has actively opposed same-sex unions in California and elsewhere — but he supports a state law that would ban discrimination based on sexual orientation, which the church has also supported.

“To me gay marriage is part of my religious belief and I support that and I respect other religious beliefs and I support and love those who are in the gay community,” Cooke said. “I think what needs to be done in Utah is for us to all live together, be compassionate. That’s what the Democratic Party is showing.”

Well, okay, I guess that’s to be expected. It is Utah, after all.

But I’m not so sure that “I promise to vote how the church tells me” is that compelling of a position for politicians anymore. At some point people just get tired of being told that their church will do the thinking for them. And it seems to me that the Mormons may want to take a little glance at their buddies the Catholics and recognize that the more that church leaders insist on dictating politics, the more their flock feels comfortable with ignoring what they have to say.

And maybe, just maybe, Cooke could have grown a pair and used this to his advantage. He could have said that unlike Republican Governor Gary Herbert, he stands for gay families. He could have championed civil unions (or some other form of couple recognition) – as do 71% of Utah’s residents. And had he done so he, he might have stood out as the candidate more in line with “Utah values.”

You know that you’ve lost the “protect marriage” battle, when…

… when 71% of Utah residents support either marriage or civil unions – according to data from Brigham Young University, as reported by Deseret News.

In the 2012 Utah survey, 43 percent of voters supported civil unions, and 28 percent supported same-sex marriage. Nationally, 24 percent favor civil unions and 38 percent favor same-sex marriage.

Using two election exit polls and two surveys of voter panels derived from those exit polls, the Center for the Study of Elections and Democracy has collected data on attitudes toward gay marriage at four time points beginning in 2004. That year, 54 percent of Utah voters opposed any form of legal recognition for same-sex relationships. The number dropped to 37 percent in 2009, 35 percent in 2010 and fell again to 29 percent in the new latest poll.

Fred calls it quits

Fred Karger has finally concluded that he is not going to win the Presidency this year. Okay, he knew it on the day he filed, but that was never his goal anyway. Fred just wanted a chance to challenge thinking about who can or cannot be gay and who can or cannot be a Republican.

Fred never reached his stated goal of debating the other Republican candidates in a televised debate. But that was because the Party and the media cheated. (And really, isn’t it disgusting that the mainstream media so dismissed him simply because he is gay while they got all in an excited gigglefest about other zero-chance candidates. No mainstream news channel called out the organizers when they refused Fred even though he met their stated standards.)

But Fred did do an amazing job of reaching people with his message. His novelty caught the attention of newspapers across the nation and many a teenager for the first time realized that a gay person could run for President. And he also provided that element which called out people on their BS. From the minor local Party people who had to ask themselves whether they really did have an objection to gay people running for office and, if so, what it was exactly to the raging homophobes who exposed themselves as such and now will soon experience the outcome of public hatred.

But Fred’s campaign – more of a gay PR campaign than a political one – is over.

LAGUNA BEACH, CA – “After 2 ½ years of campaigning as a candidate for President of the United States I am officially ending my historic campaign today June 29, 2012. It’s been one hell of a ride, and I want to thank the thousands of people across this country who volunteered, contributed, opened their homes, came to our events and cheered me on. Special thanks to the thousands more who shared their stories with me in person, via email, facebook, twitter, etc. Every one of you kept me going.

It’s been the experience of a lifetime. I’ve made many new friends and undoubtedly picked up a few more detractors. I hope and trust that my discussion of the key issues helped to open dialog on fixing the economy, balancing the federal budget, creating jobs, education reform, the environment, immigration reform, ending the Iraq and Afghanistan wars and fighting for full equality for all lesbian, gay, bisexual and transgender Americans. We must move forward on these issues and many more.

A big thank you goes out to our incredible campaign team, most of whom have been around for nearly the entire 2 ½ years. Your dedication, spirit and great ideas made all the difference.

I plan to rest up for awhile and then I will be back at it to help in the fight for LGBT equality. We will let you know as soon as our exact course is determined.

Here at BTB we have a soft spot for Fred. Maybe it’s because when I met him, his first words were, “I was on the Turtle Box today looking up something on Uganda.” Maybe it’s because when you are on the ballot, the media can’t refuse to run advertisements like this one.

Or maybe it’s because he really is a charming dorky gay nerd who reached the highest levels of political involvement (he was a Presidential advisor) and was willing to spend a big chunk of his own money to try and help out kids out there in the red states who desperately need to know that they can grow up to be anything they want to be, including charming dorky gay nerd Presidents.

Runnin’ For President Ain’t Nuttin But A Booty Call

Fred Karger, the openly gay candidate who is still pressing his issues-based campaign for the Republican nomnation, had a rough go of it in Utah which will hold its primary on June 26. He met with Republican leaders and urged the LDS Church to end its campaigns against marriage equality. One of those GOP leaders he met was Washington County Party Chairman Willie Billings. Karger said that meeting went well — Karger gave Billings a Frisbee and a T-Shirt. But when Billings took the items home, his wife threw then out and fired off an email to the Karger campaign:

From: nanette Billings <—->
Subject: running for president

Message Body:
you are an idiot. You met with my husband Willie Billings today about you being on the Utah ballot. He brought your frisby and tshirt home and it is now out in the trash. I never want to hear from such a radical idiot again. you think you are conseritave? conseritave means you beleive in the values of the founding fathers and God. Do you know you cant procreate right? Well thank goodness for that Nanette Billings

She confirmed the email to Yahoo News. She also said:

“My feeling is the only reason he’s running for president is to find more [sexual] partners,” Nanette Billings told Yahoo News in a phone interview. “To get more people on his bandwagon.”

Who said Utahns are nice?

300 Straight Mormon Allies March in Salt Lake City’s Pride Parade

It was a diverse group of Mormons (well, diverse as far as Mormons in Utah go) that showed up to march in Sunday’s Pride Parade in Salt Lake City:

The group, Mormons Building Bridges, said they wanted to send a message of love to the state’s LGBT community, a message they believe is compatible with their faith.

Emily Vandyke, 50, carried a sign with the words from an LDS children’s song: “I’ll walk with you, I’ll talk with you. That’s how I’ll show my love for you.”

Several blocks along the parade route, she embraced a tall woman weeping at the edge of the crowd who said, “Thank you.”

“I haven’t recognized them as equals,” Vandyke said a few minutes later. “They have been invisible to me.”

Organizers expected about a hundred straight Mormon families to show up. Those expectations were exceeded threefold, with many marchers showing up straight from church in their Sunday best.

Those accounts were carried in the Salt Lake Tribune and spread across the country by the Associated Press. Mormons Building Bridges also got a brief mention from the local CBS, ABC, NBC and Fox affiliates, as well as Mormon-owned Deseret News, which carefully spelled out the church’s position on homosexuality.