# 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:** 18
**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, 8:54pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/342 "2014-02-26T20:54:16Z")
> [@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? 10 Republican appointees to four Democratic ones. You do the math. As Ambrosio notes, however, it doesn’t really matter because we are heading for a circuit split that SCOTUS will probably have to take up. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [February 26, 2014, 10:05pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/343 "2014-02-26T22:05:46Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 10 Republican appointees to four Democratic ones. You do the math. As Ambrosio notes, however, it doesn’t really matter because we are heading for a circuit split that SCOTUS will probably have to take up. But haven’t some Poppy judges upheld SSM? And maybe even some (or at least one) of W’s? This is a contagion that is spreading fast. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 26, 2014, 10:52pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/344 "2014-02-26T22:52:40Z")
> [@Folacin](#): > > But haven’t some Poppy judges upheld SSM? And maybe even some (or at least one) of W’s? This is a contagion that is spreading fast. I’m not sure what a “Poppy judge” is. But leaving aside the _Baker_ problem, the Eighth Circuit upheld Nebraska’s marriage laws in 2006. It’s the only Court of Appeals decisions on same-sex marriage (except for Perry, which was both different and vacated). But, of course, it was decided pre-_Windsor_. At the district court level, you have districts courts in Nevada and Hawaii (mooted by legislative action). ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [February 26, 2014, 11:06pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/345 "2014-02-26T23:06:38Z")
> [@Falchion](#): > > I’m not sure what a “Poppy judge” is. A judge appointed by George H. W. “Poppy” Bush, as opposed to his son. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [February 26, 2014, 11:32pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/346 "2014-02-26T23:32:22Z")
> [@Marley23](#): > > A judge appointed by George H. W. “Poppy” Bush, as opposed to his son. Oh, okay. Then upholding the marriage laws are two Son Judges, one Poppy judge, and two Reagan appointees (whatever we call them). As a side note, it bothers me that judicial decisions track party lines like this. It’s bad for the rule of law. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [February 27, 2014, 12:27am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/347 "2014-02-27T00:27:05Z")
> [@Falchion](#): > > As a side note, it bothers me that judicial decisions track party lines like this. It’s bad for the rule of law. It’s one of the few checks the other two branches have on the Judicial branch. The law is never interpreted in a vacuum; there’s always a political dimension to every decision. Giving the other branches the power to appoint judges and confirm appointments enables them some influence over what decisions get made, which is important because there’s no appeals process from a SCOTUS decision, for example. If the high judges were appointed by some non-elected body, their ideology could drift arbitrarily far from the majority’s morality and there wouldn’t be anything anyone could do to preserve laws passed by popular vote (and people elected by popular vote). It would be a serious flaw in the whole idea of government by the consent of the governed. I agree that judges must be preserved from the public’s momentary irrationality, which is why impeachments should be rare and as apolitical as possible, but a ‘madness’ that outlast’s a jurist’s career isn’t really a ‘madness’ at all, or at least treating it as one is destructive to a democratic polity. After all, it wasn’t that long ago that homosexuality was considered a mental disorder. What would we do if _that_ were still the dominant view of the Judicial branch? ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [February 27, 2014, 12:43am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/348 "2014-02-27T00:43:40Z")
> [@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? If they go along with the 9th circuit in raising sexual orientation to heightened scrutiny, is there any good basis to not uphold it? ---
**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 27, 2014, 1:38am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/349 "2014-02-27T01:38:46Z")
There’s no cognizable defense of prohibitions on same sex marriage under elevated scrutiny. The problem is that a circuit court will be very reluctant to create a new suspect classification; that’s SCOTUS’ job. They could uphold the decision on the same grounds as the trial court - (purported) rational basis - but really, they shouldn’t under true rational basis analysis. ---
**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 27, 2014, 5:05am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/350 "2014-02-27T05:05:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. In this case, the Nevada AG decided that a new appeals court ruling became the ruling precedence (is this the correct term?). Wouldn’t the appellants then use that in their appeal, and with the AG not defending it, then the appeal court would have to reverse itself? ---
**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 27, 2014, 5:12am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/351 "2014-02-27T05:12:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > There’s no cognizable defense of prohibitions on same sex marriage under elevated scrutiny. The problem is that a circuit court will be very reluctant to create a new suspect classification; that’s SCOTUS’ job. They could uphold the decision on the same grounds as the trial court - (purported) rational basis - but really, they shouldn’t under true rational basis analysis. However, the 9th Circuit court of appeals already did so. Other district appeals courts haven’t had a chance at ruling on this post Windsor, but it’s going to have to go back to SCOTUS now. ---
**Author:** ![Greg\_Charles](https://avatars.discourse-cdn.com/v4/letter/g/839c29/32.png) [@Greg\_Charles](https://boards.straightdope.com/u/Greg_Charles)\ **Post date:** [April 25, 2014, 10:17pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/352 "2014-04-25T22:17:57Z")
Where are we with this? All the information I can find is that oral arguments were presented to 10th Circuit Appeals Court on April 10. Are there more arguments scheduled, or is the panel now deliberating? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 25, 2014, 5:47pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/353 "2014-06-25T17:47:41Z")
Update: A 3 judge panel of the [10th Circuit](http://www.nbcnews.com/storyline/utah-gay-marriage/federal-appeals-court-strikes-down-utahs-same-sex-marriage-ban-n140656)upheld the federal court’s decision striking down Utah’s gay marriage ban! Though the decision is automatically stayed pending appeal to the full court or the SCOTUS, I doubt anybody thinks that’s going to change anyone’s minds. However, I am troubled that this wasn’t a 3-0 decision, making the case uncomfortably close for my tastes. In other news apparently, in Indiana, a federal struck down their ban on marriage too! I’d hate to be in NOM’s office today! 😃 ---
**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:** [June 25, 2014, 6:00pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/354 "2014-06-25T18:00:35Z")
Increasingly, we’re seeing no stay issued on these rulings, which says to me that the preponderance of judicial opinion is that any appeals have no likelihood of overturning them. ---
**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:** [June 26, 2014, 1:13am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/355 "2014-06-26T01:13:16Z")
This is indeed good news. Here is for equality for all. ---
**Author:** ![OneCentStamp](https://avatars.discourse-cdn.com/v4/letter/o/13edae/32.png) [@OneCentStamp](https://boards.straightdope.com/u/OneCentStamp)\ **Post date:** [June 26, 2014, 12:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/356 "2014-06-26T12:28:28Z")
Things were going pretty bananas here yesterday. ---
**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:** [June 26, 2014, 12:30pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/357 "2014-06-26T12:30:33Z")
So does this mean that the whole 10th Circuit is now functionally SSM-required, or is it just Utah? ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [June 26, 2014, 12:33pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/358 "2014-06-26T12:33:29Z")
> [@jayjay](#): > > So does this mean that the whole 10th Circuit is now functionally SSM-required, or is it just Utah? Bricker’s response [here](http://boards.straightdope.com/sdmb/showthread.php?p=17493904#post17493904) seems to indicate that it’s controlling for the entire 10th circuit, and the [wikipedia page](http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States) seems to agree. ---
**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:** [June 26, 2014, 1:25pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/359 "2014-06-26T13:25:16Z")
The wording of the ruling makes it very clear that it is intended as a broad statement of law. > [@](#): > > We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. If the court was saying that a state could craft legislation prohibiting same sex marriage (rather than simply that it couldn’t do it the way Utah did) it would have used specific language (“the state has not sustained its burden…”) So “ayup”. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2014, 1:33pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/360 "2014-06-26T13:33:49Z")
> [@yellowjacketcoder](#): > > Bricker’s response [here](http://boards.straightdope.com/sdmb/showthread.php?p=17493904#post17493904) seems to indicate that it’s controlling for the entire 10th circuit, and the [wikipedia page](http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States) seems to agree. Yes, this is now the law in the Tenth Circuit – all of the Tenth Circuit. There’s no room for wiggle: the decision is plain and sweeping. ---
**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:** [June 26, 2014, 1:52pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/361 "2014-06-26T13:52:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The wording of the ruling makes it very clear that it is intended as a broad statement of law. > > If the court was saying that a state could craft legislation prohibiting same sex marriage (rather than simply that it couldn’t do it the way Utah did) it would have used specific language (“the state has not sustained its burden…”) So “ayup”. 🙂 The bit in the brackets should say “but couldn’t do it the way Utah did it.” I think my thought train derailed and was facing the wrong direction when it got back on the tracks. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=17) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=19)