Utah's Marriage Fight Continues

[palbert]

The standard for a stay is not inflexible.

University of Utah law professor Cliff Rosky, who also serves on Equality Utah’s board of directors, said ...

"It’s basically asking, Was the 10th Circuit’s decision reasonable? Could a reasonable argument be made for making the decision the 10th Circuit made?" Rosky said. "It doesn’t matter if the Supreme Court agrees with the ruling, what matters if it was reasonable. If it was, it stands."

http://www.sltrib.com/sltrib/news/57306142-78/court-utah-state-sex.html.csp

While it is not my personal view, valid argument exists that it was unreasonable for the trial court and appellate court to deny the stay, particularly given the number of marriages AND the very real probability that SCOTUS would invoke a stay. One does not casually render state laws unconstitutional without review being in order.

 

[Alnitak]

But that's what we keep you here for, you are our Brita gay marriage news filter.

I freely admit I get really lost trying to keep tabs on what's going on in multiple states and see how it's tying together with what the Supreme Court is hearing. So I appreciate someone else having the motivation to distill it for us.

There are only two cases on appeal right now, and the one amendment fight in Indiana. That's where the focus is, and it's not too hard to tackle. Of course there is a lot lot more going on behind the scenes; Virginia could literally start at any minute, unannounced and as dramatic as Utah has been.

In a few months it will be a bit much to keep track of as the civil process matures and other cases go to trial, but this Utah case will probably keep everyone's attention. Right now it looks like the next one to reach the Supreme Court because Sevcik is just taking too long to get through the 9th Circuit.

 

[palbert]

There are only two cases on appeal right now, and the one amendment fight in Indiana. That's where the focus is, and it's not too hard to tackle. Of course there is a lot lot more going on behind the scenes; Virginia could literally start at any minute, unannounced and as dramatic as Utah has been.

In a few months it will be a bit much to keep track of as the civil process matures and other cases go to trial, but this Utah case will probably keep everyone's attention. Right now it looks like the next one to reach the Supreme Court because Sevcik is just taking too long to get through the 9th Circuit.

For reference Sevcik v Sandoval

 

[scream4ever]

Virginia of course is different from Utah, as no statewide officials will appeal the ruling, so it'll likely end if/when summary judgment is granted.

 

[bankside]

I think the SC had no choice; to have not issued a stay would have been to presume a defeat for Utah. I would suggest that in this matter, at this stage of clarifying constitutional obligations toward equal marriage, even the bigots deserve their day in court.

 

[Kulindahr]

The standard for a stay is not inflexible.



While it is not my personal view, valid argument exists that it was unreasonable for the trial court and appellate court to deny the stay, particularly given the number of marriages AND the very real probability that SCOTUS would invoke a stay. One does not casually render state laws unconstitutional without review being in order.

Having read the original decision, I wouldn't call it "casual".

 

[T-Rexx]

I think the SC had no choice; to have not issued a stay would have been to presume a defeat for Utah.

That is exactly one of the reasons the lower courts refused a stay. The 10th Circuit said in its refusal statement that it did not judge that Utah could prevail on appeal. The state does not even have an argument against gay marriage.

Utah is claiming unspecified damage to straight marriage from gay marriage, but says the nature of this damage cannot be known or described. WTF? That's not an argument. But it is nevertheless somehow an emergency that the marriages be stopped. This unspecified, nebulous, unknowable damage is so severe that it trumps the quite demonstrable damage that is being done to gay Utahns by the lack of marriage rights. That's what the court is saying.

I would suggest that in this matter, at this stage of clarifying constitutional obligations toward equal marriage, even the bigots deserve their day in court.

This is not about the Utah bigots getting their day in court. That will come.

This is about Utah's emergency need to stop acts of love and commitment within their state, because such acts are so obviously dangerous and harmful. Even though Utah can't explain why.

 

[bankside]

That is exactly one of the reasons the lower courts refused a stay. The 10th Circuit said in its refusal statement that it did not judge that Utah could prevail on appeal. The state does not even have an argument against gay marriage.

Utah is claiming unspecified damage to straight marriage from gay marriage, but says the nature of this damage cannot be known or described. WTF? That's not an argument. But it is nevertheless somehow an emergency that the marriages be stopped. This unspecified, nebulous, unknowable damage is so severe that it trumps the quite demonstrable damage that is being done to gay Utahns by the lack of marriage rights. That's what the court is saying.

This is not about the Utah bigots getting their day in court. That will come.

This is about Utah's emergency need to stop acts of love and commitment within their state, because such acts are so obviously dangerous and harmful. Even though Utah can't explain why.

The thing is, this is a momentous decision. The Court does actually have considerations beyond the narrow legal questions at play. Especially when the public takes a keen interest in a case, and especially when there is political acrimony on both sides, the Court have an obligation to educate the public about the law. They must also defeat critics who whine about judicial bias and judicial activism (Oh no! The Court is making me follow the Constitution! Damned interfering busybodies! Communists! Heretics!), and they must defeat any misperception that they are rushing to judgment without allowing for a full airing of views.

In view of all these circumstances, this is an argument that must be held, by definition, at the highest court in any country. Thus, even if the entire Court were to agree that the state has no case, they must nonetheless allow the state to have its say, and the options of just dismissing the request for appeal, or of denying a stay, just weren't appropriate.

 

[JayHawk]

Possibly not for here but I heard on the same ticker with the UTAH stay, Four Arizona couples are suing the state for equality.

 

[Ninja108]

Not surprised by this at all. Let's face it,if the state hadn't bungled the appeal so badly,a stay would have been issued the same day the judge's ruling came down.
Them issuing a stay says nothing about how they would rule if it got to them.

 

[Alnitak]

This will be an interesting lesson from here on as everyone in state government and most counties are hostile to gay couples. I'm not clear on extent of the stay, i.e. if the state must or will honor the ones that have already taken place.

Not surprised by this at all. Let's face it,if the state hadn't bungled the appeal so badly,a stay would have been issued the same day the judge's ruling came down.
Them issuing a stay says nothing about how they would rule if it got to them.

We'll never know, but I don't see why the 10th Circuit wouldn't have denied it three times.

 

[Alnitak]

Anyway, briefing will be finished by February 25, and oral argents could be scheduled by mid-March at the soonest.

 

[Kulindahr]

Not surprised by this at all. Let's face it,if the state hadn't bungled the appeal so badly,a stay would have been issued the same day the judge's ruling came down.
Them issuing a stay says nothing about how they would rule if it got to them.

Every argument out there against gay marriage has been sunk, debunked, shredded, and/or negated to the point that there's no way to make an appeal without bungling it badly. When your arsenal consists of pieces of broken pottery, the amazing thing is not that your effort is bungled, but that it can be put on with a straight face and a modicum of dignity.

 

[hotatlboi]

The court is signalling that it does not intend to usurp the authority of states to define marriage as they see fit.

This is exactly what the Windsor opinion said too though, so I'm not sure why this is surprising.

After Windsor, the SCOTUS clearly wanted the states to explore the issue more imo. The oral arguments and responses gave this impression as well.

I don't believe they will be ready to make a national ruling for gay marriage for quite a while.

 

[Kulindahr]

This is exactly what the Windsor opinion said too though, so I'm not sure why this is surprising.

After Windsor, the SCOTUS clearly wanted the states to explore the issue more imo. The oral arguments and responses gave this impression as well.

I don't believe they will be ready to make a national ruling for gay marriage for quite a while.

Right -- there's no argument at all that the states still get to define marriage. The issue is that some definitions of marriage are unconstitutional, and it's already established that the Court can say so.

I would have thought that the first ruling SCOTUS would do would concern the full faith and credit clause, telling states that they can't refuse to honor marriages done in other states, but things are sudden;y moving so fast that they really don't have the leisure to be incremental about this.

 

[scream4ever]

This is exactly what the Windsor opinion said too though, so I'm not sure why this is surprising.

After Windsor, the SCOTUS clearly wanted the states to explore the issue more imo. The oral arguments and responses gave this impression as well.

I don't believe they will be ready to make a national ruling for gay marriage for quite a while.

Well the soonest they would given the current schedule would be mid-2015. I honestly don't see how they could stave this off much longer then that.

 

[T-Rexx]

This is exactly what the Windsor opinion said too though, so I'm not sure why this is surprising.

It's not surprising, but it is frustrating.

For much of America, there is no hope of marriage equality without SCOTUS. If SCOTUS refuses to overrule these state constitutional amendments against gay marriage, America will become a bizarre patchwork of enlightenment and repression for many decades.

After Windsor, the SCOTUS clearly wanted the states to explore the issue more imo. The oral arguments and responses gave this impression as well.

I don't believe they will be ready to make a national ruling for gay marriage for quite a while.

This is my impression, as well. This court has struggled mightily in a decided effort not to bring marriage equality to America.

This court has a chance to make history in a very positive way. But, they seem determined to be remembered to history as a cowardly, unenlightened, and mediocre court which held back the rights of gay people long after the right thing to do was obvious.

 

[hotatlboi]

Right -- there's no argument at all that the states still get to define marriage. The issue is that some definitions of marriage are unconstitutional, and it's already established that the Court can say so.

Of course they could, I was just saying I don't believe they will be ready to do so for a while longer.

I would have thought that the first ruling SCOTUS would do would concern the full faith and credit clause, telling states that they can't refuse to honor marriages done in other states, but things are sudden;y moving so fast that they really don't have the leisure to be incremental about this.

Construct pointed out (when he was still around) that the full faith and credit clause has never applied to marriage. States have rejected heterosexual marriages from other states that conflict with their laws as well.

 

[hotatlboi]

It's not surprising, but it is frustrating.

For much of America, there is no hope of marriage equality without SCOTUS. If SCOTUS refuses to overrule these state constitutional amendments against gay marriage, America will become a bizarre patchwork of enlightenment and repression for many decades.

I don't think it will take decades, maybe 5-10 years.
But things are getting better, at least now we have the option of moving to one of 18 states that do have marriage equality and getting full federal benefits.

 

[T-Rexx]

I don't think it will take decades, maybe 5-10 years.
But things are getting better, at least now we have the option of moving to one of [strike]18[/strike] 17 states that do have marriage equality and getting full federal benefits.

No, if SCOTUS doesn't do it, it will take decades.

Neither Utah nor Wyoming nor Mississippi nor any number of other states are going to be voting in marriage equality at the ballot box anytime within the next 10 years. These are parts of the country where ignorance begets ignorance. These people can only be brought into the 21st century kicking and screaming.

Then, once they have lived with marriage equality for a couple years, they will not remember what it was they objected to.