After the US District Court judge Robert Shelby declared on Friday that the Utah ban on same-sex marriage was unconstitutional, marriage licenses started being issued while the government filed a motion with him asking him to stay his order pending appeal. The government, perhaps fearing that many more same-sex couples would get married while the judge considered their motion for a stay, also filed an emergency motion with the 10th Circuit Court of Appeals asking them to immediately impose a stay.
But yesterday the Appeals Court rejected the government’s request, saying that the proper procedure was that they had to await the outcome of the judge’s decision. Only if the judge denied their motion for a stay could they ask the Appeals Court to impose a stay. And just a few minutes ago, Shelby denied the request for a stay, which means that the Utah state government has now to go back to the Court of Appeals asking them for an emergency stay.
As a result, licenses will continue to be issued, that started with the opening of business today at 8:00 am Utah time. Since judge Shelby was scheduled to hear the case for a stay at 9:00 am, the worst-case scenario was that there would be a window of one hour for couples to get licenses to get married. They have been lining up in large numbers. Now they will have more time until the Appeals Court rules.
These licenses are likely to remain valid even if a stay is granted. Whether the marriages will still be legal if the ruling is overturned later is something that is unclear.
Whether the marriages will still be legal if the ruling is overturned later is something that is unclear.
I suspect not, at least until there is a ruling from a higher court. In California, after the passage of Prop. 8, then Attorney General Brown ruled that marriages that were performed prior to the passage continued to be valid. I rather suspect that the Attorney General in Utah will not rule likewise.
Imagine the PR shitstorm waiting in the wings if the Utah AG rules the marriages invalid if the case is overturned. I can see the headline now- “Utah government dissolves legal marriages!!!!!”
Even if Brown in California had been so inclined (he wasn’t), only an idiot would pull the trigger on that action.
I saw earlier that the request for a stay had been turned down--I hadn’t realized it was partly because they went to the wrong court. Isn’t federal procedure covered in law school?
Re Vicki @ #2
As I understand it, they went to the 10th Circuit court of Appeals which sent the appeal back saying that it was premature because, at that time, the district court had not yet ruled on their motion.
And in Ohio news, the Federal District Court there today has finalized its ruling declaring (part of) the Ohio ban on same-sex marriage recognition unconstitutional. It also relies heavily on Scalia’s dissent in Windsor. It’s a limited ruling regarding whether a same-sex marriage from another state has to be recognized on a death certificate in Ohio. The reason it is limited is because that was the only issue before the court, and the court was not about to decide an issue not before it. However, Footnote 22 is predictive:
You can read (and download, if you wish) the full opinion from my website.
ahcuah @#5,
Thanks for that story and the link to the ruling. It looks like the US Supreme Court ruling on DOMA is having a huge impact on these kinds of cases.
Re Mano Singham @ #6
As I believe I mentioned in an earlier post, there is also a case in Pennsylvania which will be presided over by none other then John Jones III. Judge Jones rejected a request from the state that the case be thrown out, with the following interesting comment that supports your contention:
Jones says there’ve been “substantial and far-reaching” developments in how courts treat equal protection and due process rights since the U.S. Supreme Court’s 1972 decision that it lacked the jurisdiction to decide whether a Minnesota law banning same-sex marriages violated the Constitution.
He says that puts him in a position to hear the case.
http://goo.gl/xhOiqC