# 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:** 4
**Author:** ![drewtwo99](https://avatars.discourse-cdn.com/v4/letter/d/d07c76/32.png) [@drewtwo99](https://boards.straightdope.com/u/drewtwo99)\ **Post date:** [December 25, 2013, 2:47am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/61 "2013-12-25T02:47:06Z")
Interested to hear bricker’s opinion on why the stay was not granted when he was all but certain they would ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [December 25, 2013, 3:08am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/62 "2013-12-25T03:08:26Z")
> [@Gyrate](#): > > Let me repeat that: the Boy Scouts, members of that bastion of traditional homophobia, are delivering free pizzas to gay couples waiting to get married. In Utah. It’s a Festivus miracle! ---
**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:** [December 25, 2013, 3:55am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/63 "2013-12-25T03:55:03Z")
> [@hajario](#): > > The anti-SSM people are grasping at straws. There is no rational legal reason to put a stop to the marriages. It’s just ugliness, pettiness and meanness at this point, as they are attempting to prevent people who love either other the same benefits which are afforded others. From the ruling denying the emergency > [@](#): > > A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001); 10th Cir. R. 8.1. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. Nken v. Holder, 556 U.S. 418, 434-35 (2009). > > Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted. Accordingly, we deny Defendants-Appellants’ emergency motions for a stay pending appeal and for a temporary stay. In addition, we direct expedited consideration of this appeal. > > The Clerk is directed to issue a separate order setting deadlines for briefing. Utah is planning to appeal to the Supreme Court for an emergency stay, and will need to first appeal to Justice Sonia Sotomayor who will have the option of considering the state’s request herself or referring it to the full court. If she considers, and subsequently denies, the state’s request for a stay, Utah’s last option is appealing to the Supreme Court itself. Experts say that it will be much more difficult to achieve an emergency stay from the Supreme Court. Interesting. This could be a case which is the nail in the coffin for the anti-SSM. ---
**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:** [December 25, 2013, 5:21am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/64 "2013-12-25T05:21:11Z")
> [@D-bear](#): > > Motion Denied. > > [http://libertasutah.org/drop/staydenial.pdf](http://libertasutah.org/drop/staydenial.pdf) Why do I get the feeling Gary Herbert’s head just exploded? On a more serious note, maybe I’m not watching enough news shows or it’s because this has happened so close to Christmas and everyone is distracted, but the absence of noticeable kicking and screaming from the usual right wing talking heads has me very puzzled. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 25, 2013, 5:26am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/65 "2013-12-25T05:26:31Z")
> [@TokyoBayer](#): > > Utah is planning to appeal to the Supreme Court for an emergency stay, and will need to first appeal to Justice Sonia Sotomayor who will have the option of considering the state’s request herself or referring it to the full court. If she considers, and subsequently denies, the state’s request for a stay, Utah’s last option is appealing to the Supreme Court itself. Curious, why Sotomayor specifically? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [December 25, 2013, 5:39am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/66 "2013-12-25T05:39:37Z")
> [@YogSosoth](#): > > Curious, why Sotomayor specifically? Each circuit court has an assigned Supreme Court justice. In the past, they were expected to go and hear cases in their circuit every so often. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [December 25, 2013, 5:42am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/67 "2013-12-25T05:42:19Z")
Because she’s the [assigned justice for the 10th Circuit](http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Justices_as_Circuit_Justices). ---
**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:** [December 25, 2013, 7:49am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/68 "2013-12-25T07:49:36Z")
> [@jayjay](#): > > Yes. They’re going to fast-track an actual appeal, but did not grant an emergency stay. > > This MAY indicate that the chances of the Circuit overturning the District court are less than likely. But I’m no lawyer. And the 10th is NOT the 9th…they tend to be a bit more conservative. We get to find out just how far the Overton Window on marriage equality has shifted since Prop 8. This is spectacular news. Even with the fast track, it’s sure to be at least a couple of months assuming that SCOTUS doesn’t get involved. Utah!! This is just amazing. I am so happy about how quickly this has been changing. > [@drewtwo99](#): > > Interested to hear bricker’s opinion on why the stay was not granted when he was all but certain they would He already said that he was nearly certain because historically it’s a rare outcome. ---
**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:** [December 25, 2013, 7:56am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/69 "2013-12-25T07:56:04Z")
> [@D-bear](#): > > Motion Denied. > > [http://libertasutah.org/drop/staydenial.pdf](http://libertasutah.org/drop/staydenial.pdf) The two judges from the 10th are Holmes and Bacharach. Holmes was appointed by GW Bush in '06. Bacharach was appointed this year by Obama. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 25, 2013, 11:20am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/70 "2013-12-25T11:20:08Z")
> [@jayjay](#): > > Yes. They’re going to fast-track an actual appeal, but did not grant an emergency stay. > > This MAY indicate that the chances of the Circuit overturning the District court are less than likely. But I’m no lawyer. And the 10th is NOT the 9th…they tend to be a bit more conservative. We get to find out just how far the Overton Window on marriage equality has shifted since Prop 8. Well, my day at the racetrack was not a predictive success, it seems. I am surprised at this. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 25, 2013, 11:22am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/71 "2013-12-25T11:22:59Z")
> [@drewtwo99](#): > > Interested to hear bricker’s opinion on why the stay was not granted when he was all but certain they would From a purely historical perspective, the long-standing practice has been to grant stays to allow the appellate court process to act. It was that long-standing track record which fueled my near-certainty. But, clearly, I was wrong, through and through! ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 25, 2013, 1:10pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/72 "2013-12-25T13:10:13Z")
> [@TokyoBayer](#): > > Utah is planning to appeal to the Supreme Court for an emergency stay, and will need to first appeal to Justice Sonia Sotomayor who will have the option of considering the state’s request herself or referring it to the full court. If she considers, and subsequently denies, the state’s request for a stay, Utah’s last option is appealing to the Supreme Court itself. > > Experts say that it will be much more difficult to achieve an emergency stay from the Supreme Court. > > Interesting. This could be a case which is the nail in the coffin for the anti-SSM. Is it typical for a stay to be denied if the judge simply thinks there’s no fucking way a ruling can be overturned? That could be the situation, given the SCOTUS guidance in the DOMA case. ---
**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:** [December 25, 2013, 3:55pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/73 "2013-12-25T15:55:00Z")
Stunning! This really puts the exclamation point on a watershed year! If the court eventually denies the appeal, what does it mean for the rest of the 10th Circuit? Or for the rest of the country? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 25, 2013, 7:44pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/74 "2013-12-25T19:44:02Z")
> [@Greg\_Charles](#): > > Stunning! This really puts the exclamation point on a watershed year! If the court eventually denies the appeal, what does it mean for the rest of the 10th Circuit? Or for the rest of the country? From a legal standpoint, if the Tenth Circuit simply denies the stay, it’s meaningless in terms of precedent. But when they hear the appeal itself, if they affirm the decision of the District Court, it would invalidate all laws or constitutional amendments in the Tenth Circuit forbidding same sex marriage. ---
**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:** [December 25, 2013, 8:00pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/75 "2013-12-25T20:00:25Z")
> [@Bricker](#): > > From a legal standpoint, if the Tenth Circuit simply denies the stay, it’s meaningless in terms of precedent. But when they hear the appeal itself, if they affirm the decision of the District Court, it would invalidate all laws or constitutional amendments in the Tenth Circuit forbidding same sex marriage. The Prop 8 case was limited to CA and not the whole 9th. I realize that there were some differences between the two cases. Could they limit it to just UT? ---
**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:** [December 25, 2013, 8:14pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/76 "2013-12-25T20:14:26Z")
> [@Kolak\_of\_Twilo](#): > > On a more serious note, maybe I’m not watching enough news shows or it’s because this has happened so close to Christmas and everyone is distracted, but the absence of noticeable kicking and screaming from the usual right wing talking heads has me very puzzled. My bet? That it’s Game Over in that the enough of the masses have decided to accept SSM that the media talking heads have decided that continuing to push this issue will put them too far away from the crowd. That or too much eggnog. > [@Bricker](#): > > From a purely historical perspective, the long-standing practice has been to grant stays to allow the appellate court process to act. It was that long-standing track record which fueled my near-certainty. But, clearly, I was wrong, through and through! **Bricker** , if the country had more consersatives like you, we would be a much better nation. Hell, if we had more liberals like you, we would be a much better nation. I don’t always (ever?) agree with your opinions, but you are honest. To be fair, it appears that Utah dropped the ball on this one. The Attorney General for Utah just resigned at the end of November because of a scandal, and the office is disorganized. Apparently, they failed to file briefs at an earlier stage outlining any potential damage; they were expecting the ruling to take longer, sometime in January, so they appear to have thought that they had time; and reading between the lines from 6,000 miles away, my guess is that they believed they had this one in the bag. Although I can’t find anything online, Judge Shelby could well be a Mormon. Although is is originally from outside Utah, he has strong ties within a relatively conservative (based on normal standards, almost a pinko within the Beehive State) base. He was the student VP at Utah State University, maybe 80%+ Mormon, and far more conservative than my school, University of Utah, although not BYU by any means. OTOH, looking at his judicial profile, he was in the military when he would have been eligible for a Mormon mission, but that’s less of a strike against him than it would be for someone of my age. He was employed at Snow, Christensen & Martineau, which had been a strong Mormon firm. Don’t know now. . . Finally, although he’s an Obama appointee, he was supported by Orrin Hatch. . . Not only did the State fail to file a brief prior to the ruling, their actions after show they weren’t prepared. Shelby dismissed the motion to stay which they filed on Monday as nothing more than a rehash of their failed arguments and they bizarrely filed two meaningless motions with the 10th Circuit Court prior to Shelby’s ruling. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 25, 2013, 8:18pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/77 "2013-12-25T20:18:10Z")
> [@hajario](#): > > The Prop 8 case was limited to CA and not the whole 9th. I realize that there were some differences between the two cases. Could they limit it to just UT? The legal reason Prop 8 was limited to California doesn’t exist in this Utah case. In the Prop 8 case, the sequence of events was: [ul][li]CA Supreme Court found that California’s constitution required the state to offer same-sex marriage[/li][li]California voters approved Prop 8, modifying the state constitution to explicitly forbid same-sex marriage[/li][li]Federal lawsuit challenged the validity of Prop 8[/li][li]At the federal district court, the judge ruled that California could not offer same-sex marriage and then take it away[/li][li]California governor and Attorney General decided not to appeal[/li][li]Sponsors of Prop 8 asked the circuit court for permission to step in and litigate the appeal[/li][li]Circuit court grants permission[/li][li]Circuit court upholds district court[/li][li]Sponsors of Prop 8 petition Supreme Court for review[/li][li]Supreme Court grants review, rules that the Ninth Circuit made a mistake in letting Prop 8 sponsors litigate in the first place - they had no standing to fight on behalf of California[/li][/ul] So the end result was that the district court’s decision was the operative one. But the procedural posture of the case meant that this result was unique to California – the Ninth Circuit never decided anything of precedential value because they never had the proper parties in front of them. In contrast, the Utah case is straightforward: Utah never offered same-sex marriage to begin with. They simply forbid it. The judge in this case ruled that the federal constitution does not permit states to forbid same-sex marriage. If his decision is upheld by the Tenth Circuit, no state in the Tenth Circuit can legally forbid same-sex marriage. ---
**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:** [December 25, 2013, 9:13pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/78 "2013-12-25T21:13:18Z")
And that’s a hefty hunk of very conservative America: Utah, Wyoming, Oklahoma, Colorado, New Mexico and Kansas. I’m looking forward to the day SSMs are held across the street from Westboro. ---
**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:** [December 25, 2013, 9:25pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/79 "2013-12-25T21:25:21Z")
> [@silenus](#): > > And that’s a hefty hunk of very conservative America: Utah, Wyoming, Oklahoma, Colorado, New Mexico and Kansas. > > I’m looking forward to the day SSMs are held across the street from Westboro. [They already have been](http://www.huffingtonpost.com/2013/06/23/equality-house-wedding_n_3486814.html), although of course that wasn’t legally binding. ---
**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:** [December 25, 2013, 10:20pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/80 "2013-12-25T22:20:30Z")
> [@silenus](#): > > And that’s a hefty hunk of very conservative America: Utah, Wyoming, Oklahoma, Colorado, New Mexico and Kansas. > > I’m looking forward to the day SSMs are held across the street from Westboro. It’s already legal in New Mexico. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=3) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=5)