Monday, January 6, 2014

Marriages stop in Utah

The Supreme Court of the US has issued a stay, preventing any more same sex marriages until the appeal by the state of Utah is heard by the 10th circuit.

Marriages began in Utah because the state had not asked for a pre-emptive stay (in the event they lost the case in district court, as they did).  This may be because of turmoil in the attorney general's office.

By comparison, when District Judge Vaughn Walker  found that CA Prop8 was unconstitutional under federal law, he immediately stayed his decision, before appeal to the 9th circuit even happened. That's because the guys on the other side filed pre-emptively for a stay pending appeal. This led to years of further delay before SCOTUS eventually allowed the decision to stand.

There is also some discussion on whether the marriages that have already occurred in Utah (over 1000, I've read) will remain legal.

In California, during the window prior to passage of Prop8 in Nov. 2008, about 18,000 of us married.  It wasn't until June of that year that the state court agreed that those marriages remained legal, because they had been legal under state law when they were entered into.   And the fact of their legality, leading to some gay people who were married, and some who couldn't, was part of the federal court case that eventually led to overturning Prop8. 

(Contrast this to the marriages in San Francisco  a few years earlier, which were annulled because they were illegal under state law when performed by rogue SF mayor Gavin Newsome).

My bet is that the marriages currently existing will stay legal, because they were legal when contracted.

But we'll see.

Meanwhile, Utah's argument continues to be based on procreation and child-rearing.  But the case has nothing to do with adoption, only with marriage. And given that many gay couples are already raising kids, and legal marriage will not change that (although it will provide benefits), that argument, which is the primary argument of most of our opponents, would seem to be a non-starter.

I have mixed feelings about this.  I fear, along with Justice Ginsburg, a Roe-v-Wade backlash if SCOTUS goes big.  OTOH, they can also punt.  Even if the 10th circuit finds for equality, if they find narrowly enough that it only applies to Utah, there's no requirement for SCOTUS to take the inevitable appeal.

Again, we'll see.


Brother David said...

I'm not sure that I see how the 10th Circuit can issue a ruling that only applies to Utah. The federal district court's ruling is that a Utah state constitutional amendment defining marriage as between one man and one woman was unconstitutional as far as the US Constitution.

In the California case, where the State chose not to appeal the district court's ruling, and 3rd parties stepped in and appealed, both on the appellant and the supreme court levels, the US Supreme court had leeway to make a narrow ruling that the 3rd parties did not have standing to appeal the district court's decision to either the 9th Circuit nor the US Supreme Court. So that made the 9th Circuit's ruling upholding the district court's finding superfluous and a 9th Circuit-wide precedent was not set.

In this Utah case, the State is appealing. Should the 10th Circuit uphold the district court's ruling, that should set a precedent and apply to every state in the 10th circuit which also has a similar state constitutional amendment defining marriage as between one man and one woman.

Should the 10th Circuit uphold the district court's ruling, and the State of Utah appeal to the US Supreme Court, the Supreme Court can side step the issue by refusing to hear the appeal, leaving the 10th Circuit precedent the rule of law in the 10th Circuit.

As long as the findings in other federal district and circuit courts mirror the above hypothesized outcome in Utah and the 10th Circuit, the US Supreme Court can continue to side step the issue and allow the lower courts' findings to stand. However, should a circuit court rule in the opposite manner, upholding a state constitutional amendment defining marriage as between one man and one woman as constitutional with regard to the US Constitution, then opposing precedents would exist and the US Supreme Court would then have to step in and make a decision regarding which ruling should prevail.

Paul (A.) said...

Actually, the Supreme Court does not have to step in and take a case where the Circuit Courts of Appeal are split, although that weighs heavily in the justices' deciding to exercise their discretion to grant certiorari. At times they have waited for a subsequent case that may in their minds present an issue better for them.

As I read the District Court decision in the Utah case, if the 10th Circuit affirms it, the principle should apply to any state's laws within the 10th Circuit, whether stated in a state constitution or its statutes.

Brother David said...

I believe that Utah has both, prior legislation in their legal code from the late 90s that defines marriage as only between one man and one woman, as well as a later (2004?) constitutional amendment defining the same.

JCF said...

At 1000 same-sex marriages in Utah, that's 4000 feet in the door! ;-)

There's no way those marriages are annulled. The only question: how soon can more same-sex couples join them? In Utah, in the 10 District, everywhere in the U.S. of A.???

Brother David said...

I'm thinking that Justice Sotomayor through Utah a carrot to ease their shock. Especially considering that the 2nd time that the 10th Circuit refused to stay the district court's decision, the reasoning was because the court did not believe that Utah would prevail before them in an appeal.

Heterosexual marriage is more engrained in these people (75% of the Utah population) than others anywhere else in the nation. It is their theology. A man cannot enter the presence of God, cannot attain Godhood himself, without his wife. And she cannot even enter the resurrection unless her husband calls her forth from the grave.

Brother David said...

Sorry, no speaky the language!
That should be threw Utah a carrot

Kevin K said...

If the 10th Circuit affirms Judge Shelby's opinion, then there would be a split in the Circuits. The 8th Circuit came to the opposite conclusion. While the Supreme Court is not required to sort out such a difference in the Circuits it would be hard not to take the case when two Circuits have reached different results on a constitutional issue.

The stay was issued by the entire Court. Had the Court not acted, I think that would have strongly suggested that there were five votes to affirm.

Kevin K