# Utah judge strikes down same-sex marriage ban! **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [December 21, 2013, 12:33am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863 "2013-12-21T00:33:30Z")\ **Posts on this page:** 20\ **Page:** 17
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 31, 2014, 4:03pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/322 "2014-01-31T16:03:34Z")
I suspect if you did a poll of NYT (or whatever) readers less than half would know. I do a lot of writing about a legal test that also involves the term “basis” and I try to avoid pluralizing it when I can so I don’t get confused emails from clients. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 31, 2014, 5:32pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/323 "2014-01-31T17:32:58Z")
The ruling squarely deals with many of the issues raised in this thread, prior to which I had not been aware of the question of heightened level of scrutiny versus a rational basis analysis, and that was one thing which caught my eye. From the ruling: > [@9th District Court of Appeals](#): > > In Witt, we looked to three factors in determining that Lawrence applied a > heightened level of scrutiny rather than a rational basis analysis. We stated that > Lawrence did not consider the possible post-hoc rationalizations for the law, > required under rational basis review. Witt, 527 F.3d at 817. We further explained > that Lawrence required a “legitimate state interest” to “justify” the harm that the > Texas law inflicted as is traditionally the case in heightened scrutiny. Witt, 527 > F.3d at 817 (quoting Lawrence, 539 U.S. at 578) (internal quotation marks > omitted). Finally, we looked to the cases on which Lawrence relied and found that > those cases applied heightened scrutiny. Witt, 527 F.3d at 817. Applying the Witt > test here, we conclude that Windsor compels the same result with respect to equal protection that Lawrence compelled with respect to substantive due process: > Windsor review is not rational basis review. In its words and its deed, Windsor > established a level of scrutiny for classifications based on sexual orientation that is > unquestionably higher than rational basis review. In other words, Windsor requires > that heightened scrutiny be applied to equal protection claims involving sexual > orientation. It will be really interesting to see how the Utah appeal goes. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 6:09pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/324 "2014-01-31T18:09:41Z")
> [@TokyoBayer](#): > > From the [Times](http://takingnote.blogs.nytimes.com/2014/01/27/nevadas-argument-against-same-sex-marriage-no-longer-tenable/?src=recg)Reading through the Ninth Court decision, it takes it step-by-step to show how they read _Windsor_ and concluded that SCOTUS treated gays and lesbians as a class with heightened level of scrutiny, and why it was not a rational basis analysis. > > A number of blogs have pointed out the significance of this. This argument will certainly be copied in other cases and appeals. One blog from a legal adviser to one of the gay and lesbian groups pointed out the number of cases working they way through the different states. I think that 9th Circuit decision has the potential to play a huge role in this issue. But I have to quibble somewhat with that article. Her statement doesn’t really suggest that she did an “about-face.” When you tailor a brief towards one legal standard, and then the legal standard changes, a good number of your argument may not be tenable any longer. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 31, 2014, 6:38pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/325 "2014-01-31T18:38:26Z")
> [@Falchion](#): > > I think that 9th Circuit decision has the potential to play a huge role in this issue. But I have to quibble somewhat with that article. Her statement doesn’t really suggest that she did an “about-face.” When you tailor a brief towards one legal standard, and then the legal standard changes, a good number of your argument may not be tenable any longer. Agreed with the quibble and also the assessment that this could be big. Nevada’s AG hasn’t actually made a decision, only that she is reevaluating the situation. From the AG website, > [@](#): > > This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.” “Next week” is coming to an end. Nevada had gotten an extension for 30 days after Dec. 20 for filing it’s brief, and it appears that they had filed it just at the end. It will be interesting to see how this goes. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 6:59pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/326 "2014-01-31T18:59:13Z")
> [@TokyoBayer](#): > > Agreed with the quibble and also the assessment that this could be big. > > Nevada’s AG hasn’t actually made a decision, only that she is reevaluating the situation. From the AG website, “Next week” is coming to an end. > > Nevada had gotten an extension for 30 days after Dec. 20 for filing it’s brief, and it appears that they had filed it just at the end. > > It will be interesting to see how this goes. One problem that the AG faces is (skimming the district court opinion) the lower court applied rational basis. Both because the Supreme Court purports to apply rational basis and because the 9th Circuit previously explicitly held that homosexuals do not get heightened scrutiny, more than once (interesting problem of panel accord here). Assuming that this recent panel has, in fact, overturned the previous case law and heighten scrutiny not applies, I would think that the case needs to go back to the district court to be reconsidered in light of the new law. She may also be holding out to see if they file for rehearing en banc. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [January 31, 2014, 7:54pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/327 "2014-01-31T19:54:39Z")
> [@Falchion](#): > > When you tailor a brief towards one legal standard, and then the legal standard changes, a good number of your argument may not be tenable any longer. But then wouldn’t you just rewrite it, and file an amended brief? If she has decided not to continue the appeal, it seems likely that she has concluded that she is likely to lose, based on this recent decision. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 31, 2014, 7:57pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/328 "2014-01-31T19:57:02Z")
> [@t-bonham@scc.net](#): > > But then wouldn’t you just rewrite it, and file an amended brief? > > If she has decided not to continue the appeal, it seems likely that she has concluded that she is likely to lose, based on this recent decision. I’m not a law-talkin’ person, but wouldn’t it require just a BIT more work than simply rewriting it? If the legal basis for your defense has just been eroded away like sand on a beach, I imagine that puts all of your research on similar case law and precedents in the wastebin and means restarting your research from scratch. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 31, 2014, 9:00pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/329 "2014-01-31T21:00:02Z")
> [@t-bonham@scc.net](#): > > But then wouldn’t you just rewrite it, and file an amended brief? > > If she has decided not to continue the appeal, it seems likely that she has concluded that she is likely to lose, based on this recent decision. Well, maybe (although you would need the court’s permission). But the more basic problem is that this is on appeal. The lower court record, its decision, the filings in the lower court, all of that was based on a legal standard that may have changed. Unless someone invokes the “panels don’t overrule panels” rule, I think she probably has to lose on appeal, not because their marriages laws are unconstitutional, but becuase the district court analyzed the case “incorrectly.” I assume the 9th Circuit has some sort of equivalent of the “GVR” process in the Supreme Court and it seems like this might call for it. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [February 1, 2014, 4:02am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/330 "2014-02-01T04:02:26Z")
So for now, this ruling affects only cases in the Ninth District, but that courts in other districts can refer to this. IIRC, the briefs for the Utah and Oklahoma appeals to the Tenth District Court of Appeals are due by the end of February or there abouts. How does this affect them? Can the Plaintiff - Appellee (?) (the couples) refer to this in their briefs? Do the States have to counter this in case the Tenth District COA decides to make the same leap? There are also several dozen cases in the lower courts in various stages throughout the country. Are they able to file amended briefs? I can see why the adage about lawyers shouldn’t represent themselves in court. I have too much vested interest in the particular case, a gay sister living in Utah, to be coolly detached. I _want_ SSM to succeed. I got into a fight with my very Mormon mother about this. Normally we stay away from these discussions because we have agreed to disagree but she did something particularly egregious. My sister has legally changed her name to be the same as her partner. This was done because they couldn’t get married. In my mother’s will, my mother referred to my sister by her birth name and then parenthetically aka new name: Jane Doe (aka Jane Smith). I told my mother that she was completely wrong, and told her that I would donate my share of the inheritance to the American Nazi Party if that wasn’t changed. Nasty and extreme, but I would not allow her to posthumously slap my sister’s face. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [February 2, 2014, 7:46pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/331 "2014-02-02T19:46:14Z")
> [@Gyrate](#): > > a HUGE majority favor outlawing discrimination against homosexuals and transgender people: > > > [@](#): > > > > Almost three quarters of voters (72 percent) said they favor a law outlawing such discrimination with almost three in five (57 percent) saying they strongly favor it. So at least 11% of Pennsylvanians oppose same-sex marriage but also want (all other) discrimination against gay people prohibited by law? 😕 ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 3, 2014, 2:30pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/332 "2014-02-03T14:30:03Z")
> [@TokyoBayer](#): > > So for now, this ruling affects only cases in the Ninth District, but that courts in other districts can refer to this. > > IIRC, the briefs for the Utah and Oklahoma appeals to the Tenth District Court of Appeals are due by the end of February or there abouts. > > How does this affect them? Can the Plaintiff - Appellee (?) (the couples) refer to this in their briefs? Do the States have to counter this in case the Tenth District COA decides to make the same leap? First, they’re Circuits not Districts, this isn’t the Hunger Games 🙂 Anyone can cite to the decision. However, outside of the 9th Circuit, the opinion is merely “persuasive” and not “binding” which means a court can take it for what it’s worth to them. One issue is that, apparently, the 9th Circuit has previously held that homosexuality was subject to rational basis review. I would imagine (but have not looked) that other circuits have done the same thing. As a rule, one panel of the court cannot overrule another panel of the court. Reinhardt got around that here by concluding that _Windsor_ applied heightened scrutiny and that it also instructed that heightened scrutiny be applied to all claims of discrimination on the basis of sexual orientation. And a panel can certainly overrule another based on intervening Supreme Court directive. It seems to me that, given that you now have two inconsistent binding rules, it needs to be reheard en banc to address it. However persuasive you find Reinhardt’s reading of _Windsor_ (I don’t find it persuasive at all), you have a basic problem. That is, you’d need to convince the other courts not only that homosexuals get heightened scrutiny (which is a plausible argument), but that you can overrule the existing law based on a particular reading of _Windsor_ (that requires it to hold something that it does not say). Frankly, I would welcome that result because, while I tend not to believe in a constitutional right to government recognition of your personal relationships, a bigger problem is the damage that these cases are doing to the very principle of rational basis review. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 3, 2014, 2:32pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/333 "2014-02-03T14:32:27Z")
> [@Hershele\_Ostropoler](#): > > So at least 11% of Pennsylvanians oppose same-sex marriage but also want (all other) discrimination against gay people prohibited by law? 😕 Probably. It’s not that uncommon a view - some people have a thing about the word “marriage”. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 3, 2014, 2:56pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/334 "2014-02-03T14:56:31Z")
“Of \*course \*the Negroes deserve equal rights, but we’re just not ready yet.” ---
**Author:** ![Ulf\_the\_Unwashed](https://avatars.discourse-cdn.com/v4/letter/u/b4bc9f/32.png) [@Ulf\_the\_Unwashed](https://boards.straightdope.com/u/Ulf_the_Unwashed)\ **Post date:** [February 4, 2014, 5:47am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/335 "2014-02-04T05:47:43Z")
> [@Hershele\_Ostropoler](#): > > So at least 11% of Pennsylvanians oppose same-sex marriage but also want (all other) discrimination against gay people prohibited by law? 😕 Warning: Anecdote About 8 years ago I was on the search committee for a new rector for my (Episcopal) church. We interviewed a very strong candidate, a woman in a long-term relationship with another woman, who believed for reasons that I did not entirely understand that what she and her partner had was not and should not be “marriage,” but something else. She was extremely liberal in other ways, and outspoken as well; and she was quite open about her relationship with her partner, which had been blessed (literally and figuratively) by her bishop, and made it clear that she would not be interested in our church if we had any reservations about her quote-unquote lifestyle. But she said, several times, she didn’t think of their relationship as marriage. I don’t know whether she has changed her mind in the meantime. Regardless, she was an example of someone who would not have been in favor of SSM but would have been in favor of any other non-discrimination law. (Disclaimer: neither she, nor we, were in Pennsylvania) ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [February 11, 2014, 2:20am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/336 "2014-02-11T02:20:33Z")
From here: > [@](#): > > Nevada’s attorney general and governor said Monday that they won’t defend the state’s gay marriage ban when it goes before a federal appeals court, saying that a recent court decision makes the state’s arguments supporting its constitutional amendment “no longer defensible.” > > Attorney General Catherine Cortez Masto, in a motion filed with the 9th U.S. Circuit Court of Appeals, said Nevada’s legal arguments defending the voter-approved prohibition aren’t viable after the court’s recent ruling that potential jurors cannot be removed from a trial during jury selection solely because of sexual orientation. Without Nevada defending the SSM ban, what will happen? Unlike the case in Utah and Oklahoma, Nevada had won at the district court level. Without the state defending itself, a layperson would presume that the appeal would almost certainly succeed, but what to the experts say? ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [February 26, 2014, 7:54pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/337 "2014-02-26T19:54:44Z")
I would cordially like to welcome [Texas](http://www.cnn.com/2014/02/26/politics/texas-same-sex/) to the club. Texas! ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 26, 2014, 8:20pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/338 "2014-02-26T20:20:40Z")
> [@TokyoBayer](#): > > Without the state defending itself, a layperson would presume that the appeal would almost certainly succeed, but what to the experts say? It’s not strictly necessary for the state to defend the law on appeal. The appellate court could rule on the basis of the argument reflected in the trial record if it likes - and could very easily rule in the state’s favor, since the appellants have the burden of showing that the trial court made a mistake. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [February 26, 2014, 8:26pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/339 "2014-02-26T20:26:49Z")
> [@hajario](#): > > I would cordially like to welcome [Texas](http://www.cnn.com/2014/02/26/politics/texas-same-sex/) to the club. > > Texas! Ha-Ha! I’m listening for the sounds of exploding heads all over the state. ---
**Author:** ![Kolak\_of\_Twilo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kolak_of_twilo/32/73_2.png) [@Kolak\_of\_Twilo](https://boards.straightdope.com/u/Kolak_of_Twilo)\ **Post date:** [February 26, 2014, 8:29pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/340 "2014-02-26T20:29:52Z")
> [@hajario](#): > > I would cordially like to welcome [Texas](http://www.cnn.com/2014/02/26/politics/texas-same-sex/) to the club. > > Texas! This gets appealed to the 5th Circuit, right? IIRC, that’s one of the most conservative appeals courts. What are the chances they will uphold the decision? ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [February 26, 2014, 8:47pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/341 "2014-02-26T20:47:53Z")
> [@Kolak\_of\_Twilo](#): > > This gets appealed to the 5th Circuit, right? IIRC, that’s one of the most conservative appeals courts. What are the chances they will uphold the decision? Can’t tell until we see who’s on the panel, but then we’ll have a pretty good idea. It sort of doesn’t matter anyway, since the Supremes will have to take it up again. All the district courts are taking an expansive view of what _Windsor_ means, so they will (or more accurately, Kennedy will) have to either confirm that view or say that it shouldn’t be taken so broadly and the states can do what the federal government can’t. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=16) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=18)