Utah's Marriage Fight Continues

[Alnitak]

Yeah....still, has any other decision out-and-out said a ban is unconstitutional? (at the level of the US Constitution...)

I thought this might be the first case put before the SC to actually confront the core issue of whether there is any constitutional way to ban equal marriage. (up until now it seems that even when the SC affirms equality it has done so on other more nebulous/indirect grounds)

Yes, that was the issue in Hollingsworth v. Perry - the federal lawsuit against California's Proposition 8.

The justices passed on considering the central question because the losers didn't have any right to appeal. While the Supreme Court did not decide anything, that was certainly the district court's conclusion, which was allowed to stand.

Thus, this will be the first case in which Supreme Court will be forced to consider it, but not the first constitutional victory. Really they had to know it was coming because there were already four other lawsuits by oral arguments this past March. Specifically Kitchen v. Herbert was filed on March 25.

 

[Alnitak]

My local paper's opinion of Kitchen v. Herbert

Our view: Cases in Utah, Ohio herald the inevitability of same-sex marriage

And on the stay specifically...

The only specific potential harm the state cited was the possibility that, if the decision is later overturned, those who married in the meantime would find themselves in legal limbo. Implicit in that argument, though, is the notion that banning same-sex marriages is causing those couples harm, and that granting them causes no specific injury to anyone else.

Because the state said this in its motion...

"[Same sex couples] and their children will likely suffer dignitary and financial losses from invalidation of their marriages..."

http://attorneygeneral.utah.gov/wp-content/uploads/sites/6/2013/12/Application-for-Stay.pdf

No shit Sherlock.

 

[bankside]

Yes, that was the issue in Hollingsworth v. Perry - the federal lawsuit against California's Proposition 8.

The justices passed on considering the central question because the losers didn't have any right to appeal. While the Supreme Court did not decide anything, that was certainly the district court's conclusion, which was allowed to stand.

Thus, this will be the first case in which Supreme Court will be forced to consider it, but not the first constitutional victory. Really they had to know it was coming because there were already four other lawsuits by oral arguments this past March. Specifically Kitchen v. Herbert was filed on March 25.

Good! 10 characters.

 

[Kulindahr]

My local paper's opinion of Kitchen v. Herbert

Our view: Cases in Utah, Ohio herald the inevitability of same-sex marriage

And on the stay specifically...



Because the state said this in its motion...



No shit Sherlock.

Gotta love it when the other guy supplies the arguments to sink himself.

 

[palbert]

The state did have the option of asking the Court to move immediately, itself, to decide the ultimate question of state power to ban same-sex marriages. But, after consulting with lawyers outside the state government’s own legal team, the officials appeared to be operating on the premise that their best chance of delaying such marriages was to ask for the least sweeping order from the Court.

If the Justices are hesitant to get involved in the basic constitutional issue at this point, and they showed some reluctance to do that when they had s chance last Term, they might be more agreeable to a simple request to block Judge Shelby’s ruling until it is further tested in the Tenth Circuit.
...
Although the application is initially a plea for a stay of the Shelby ruling, to put a stop to the continuing issuance of same-sex marriage licenses in Utah, the substance of the state’s filing is that it actually anticipates that the ultimate issue is headed for the Supreme Court, and thus there should be a postponement of any same-sex marriages in Utah until there is a final ruling by the Supreme Court.

http://www.scotusblog.com/2013/12/utah-seeks-delay-of-same-sex-marriages/#more-202758

I no longer recall the standard for a SCOTUS stay but "irreparable harm" should be in the mix. By conceding the couples will suffer indignity and harm they seem to have given away the ballgame. To me bad lawyering seems to have left the cat out of the box.

SCOTUS is wont to face Constitutional questions. Denying the stay allows them to defer to a later day and see how the lower courts line up.

I don't see that the trial judge usurped his authority. He had two choices: constitutional or unconstitutional. And those are the choices that SCOTUS left to be tested in the lower courts.

(Is Boise, Idaho known as a bastion of Constitutional argument? I know nothing of the firm the state engaged.)

 

[palbert]

NOTE: Utah's listed outside counsel (Stewart Taylor & Morris) are all Brigham Young Law alumni. Lead Stewart clerked for Chief Justice Warren Burger.

Keeping it in the family.

 

[Vitamin]

NOTE: Utah's listed outside counsel (Stewart Taylor & Morris) are all Brigham Young Law alumni. Lead Stewart clerked for Chief Justice Warren Burger.

Keeping it in the family.

Well, they are all one family you know.

 

[T-Rexx]

I no longer recall the standard for a SCOTUS stay but "irreparable harm" should be in the mix.

It IS in the mix.

One of the problems for Utah has been the state's inability to demonstrate that it has been harmed by gay marriage. In fact, all of the evidence seems to support the harm being suffered as exclusively by gay people who want to marry, not the state of Utah.

By conceding the couples will suffer indignity and harm they seem to have given away the ballgame. To me bad lawyering seems to have left the cat out of the box.

Yes, exactly.

Fortunately for us, Utah's representation has been nothing short of incompetent. Every time they open their mouths, they say things that hurt their case.

I don't see that the trial judge usurped his authority. He had two choices: constitutional or unconstitutional.

I agree.

Utah's argument that Judge Shelby usurped his authority by ruling on the constitutionality of Utah's gay marriage constitutional amendment is strange. The lawsuit presented to Shelby's court was challenging the Utah law. Regardless of which way he ruled, he had no choice but to rule on the law. And that is the responsibility of his court, anyway.

I am no lawyer, but I do not understand the logic of challenging Shelby's authority to rule on Utah law. I thought that was what Shelby was expected to do.

Is Boise, Idaho known as a bastion of Constitutional argument? I know nothing of the firm the state engaged.

Boise is a bastion of Mormon conservatism.

All the lawyers in Stewart, Taylor, & Morris are BYU law graduates.

It seems to me that Utah would have done better to get outside help that is not so beholden to its own Mormon thinking. This is intellectual inbreeding. The arguments have not been very successful to date. Does Utah really think that someone else making the same arguments that have failed for them will somehow succeed?

Utah really doesn't seem to understand how stupid have been their arguments. I find that fact remarkable. My theory is that the people of Utah have become so accustomed to blind acceptance of the authority of their church that they have lost the ability to reason and to question. People there dare not argue ideas persuasively, because the persuasive argument of new ideas for them is so often blasphemy.

The Mormon church is profoundly authoritarian. One of the surest ways to get excommunicated is to question the church's (oddly demonstrably) false teachings. So, they have put in place a culture that does not tolerate questioning church teachings. But that willingness to accept and believe the absurd because it comes from the authority of the church does not serve them well in federal court.

 

[opinterph]

Cultures that stress traditional gender roles for women and childbirth typically are not gay friendly, and that cuts across religion and nationality.

“There is a great irony in the fact that for Utah to be allowed to become a state, it was compelled by the federal government to define marriage as a union between one man and one woman.”

– Utah Attorney General Philip Lott [Link]​

 

[Vitamin]

“There is a great irony in the fact that for Utah to be allowed to become a state, it was compelled by the federal government to define marriage as a union between one man and one woman.”

– Utah Attorney General Philip Lott [Link]​

Finally, what's been bugging me about this has been answered. I've been wondering why Utah seemed so confident when it has no argument. They think they have history on their side, but their interpretation suffers from one fundamental flaw: it wasn't so much the "man" and "woman" part that the federal government was requiring it was the "one" part. That's what we'll be arguing (I'd bet), and we'll win.

 

[Alnitak]

Finally, what's been bugging me about this has been answered. I've been wondering why Utah seemed so confident when it has no argument. They think they have history on their side, but their interpretation suffers from one fundamental flaw: it wasn't so much the "man" and "woman" part that the federal government was requiring it was the "one" part. That's what we'll be arguing (I'd bet), and we'll win.

The motion for a stay cited case law that would seem to require a history or tradition behind the right being asked for when it isn't current and Kennedy explicitly discounted that theory in Lawrence.

 

[Vitamin]

The motion for a stay cited case law that would seem to require a history or tradition behind the right being asked for when it isn't current and Kennedy explicitly discounted that theory in Lawrence.

Discounted which theory?

 

[Alnitak]

Discounted which theory?

That tradition has anything to do with rights we are entitled to. When I am on a compute I will pull the quotes.

 

[Vitamin]

That tradition has anything to do with rights we are entitled to. When I am on a compute I will pull the quotes.

Good. That was the best legal argument I've yet heard a against gay marriage, but it does still leave a it mystery as to what Utah is plotting by rushing this. You would think after seeing the tremendous fail before Judge Shelby they would have tried to give themselves more time to come up with a better case.

 

[Ninja108]

Bottom line,all they have is they should be able to discriminate against gay and lesbian couples if they want to.

 

[opinterph]

Bottom line,all they have is they should be able to discriminate against gay and lesbian couples if they want to.

Who is “they?”

 

[Alnitak]

Finally, what's been bugging me about this has been answered. I've been wondering why Utah seemed so confident when it has no argument. They think they have history on their side, but their interpretation suffers from one fundamental flaw: it wasn't so much the "man" and "woman" part that the federal government was requiring it was the "one" part. That's what we'll be arguing (I'd bet), and we'll win.

No state banned same sex marriage until Maryland passed such a statute in 1973.

 

[Alnitak]

Discounted which theory?

That tradition has anything to do with rights we are entitled to. When I am on a compute I will pull the quotes.

Two quotes from the Supreme Court on tradition; the second one from Kennedy is current authority.

"First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

Bowers v. Hardwick (1986). Justice Stevens dissenting.

“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.”
Lawrence v. Texas (2003). Justice Kennedy writing for the majority citing County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998)

Yet the motion for a stay said this:

The district court likewise flouted Gluckberg's second requirement for recognizing a due process right, anmely, that it be among the "fundamental rights and liberties which are objectively, deeply rooted in this Nation's history and tradition."

http://attorneygeneral.utah.gov/wp-content/uploads/sites/6/2013/12/Application-for-Stay.pdf

When in fact Kennedy did not adopt Scalia's affirmation of that rule in Lawrence.

Note they are referring to due process and not equal protection - two totally different concepts.

 

[T-Rexx]

That was the best legal argument I've yet heard a against gay marriage, but it does still leave a it mystery as to what Utah is plotting by rushing this. You would think after seeing the tremendous fail before Judge Shelby they would have tried to give themselves more time to come up with a better case.

Never attribute to brilliance that which can be explained by stupidity.

Utah does not have an argument against same sex marriage. Recognizing its incompetence, The state has hired outside counsel to try to come up with such an argument. Utah is rushing this because it is in a panic to enforce misery on a group it despises by prejudice. Also, the longer this goes on, the more difficult it becomes for Utah to argue it is being harmed by gay marriage, and the more embarrassing it is to the Mormon church.

Be thankful for Utah's incompetence. Utah is the friend that may bring gay marriage to all of America.

 

[Ninja108]

The Mormon Church is pulling the strings on this,thus why it's so rushed. As T-Rexx said,the longer this goes on and the horrible things that were supposed to happen don't,people will start to question what else the Mormon Church is wrong about,and they can't have that.