# 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:** 8
**Author:** ![drewtwo99](https://avatars.discourse-cdn.com/v4/letter/d/d07c76/32.png) [@drewtwo99](https://boards.straightdope.com/u/drewtwo99)\ **Post date:** [December 28, 2013, 1:09am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/141 "2013-12-28T01:09:26Z")
Lol ---
**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:** [December 28, 2013, 1:56am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/142 "2013-12-28T01:56:58Z")
Is there anyone (and I’m certainly not in this category) whose opinion about whether a stay should have been granted is different from their opinion about whether same-sex marriage should be prohibited? > [@jtgain](#): > > As applied to Utah it is. The people of that state voted to enshrine “one man, one woman” into their constitution. One single unelected judge with life tenure undid that. That reasoning invalidates the entire Federal Constitution, which routinely allows unelected judges with life tenure to undo the will of the people. If the people of a state vote to enshrine a requirement that public officials embrace Druidism into their constitution, would you have a problem with one single unelected judge undoing that? ---
**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 28, 2013, 2:18am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/143 "2013-12-28T02:18:23Z")
> [@Hershele\_Ostropoler](#): > > Is there anyone (and I’m certainly not in this category) whose opinion about whether a stay should have been granted is different from their opinion about whether same-sex marriage should be prohibited? I am VERY pro-SSM and I am very glad that there wasn’t a stay. I think that he probably should have issued a stay though. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 28, 2013, 2:45am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/144 "2013-12-28T02:45:03Z")
> [@jtgain](#): > > his ruling ultimately hinges on the thoughts of Anthony Kennedy That seems an odd way to describe a ruling of the Supreme Court of the United States, even if you dislike the results. > [@](#): > > As such, despite his strong convictions, it is a strong case on appeal and he should stay his ruling. On what basis do you consider a ruling that conforms with SCOTUS to be likely to be \*overturned \*by it? Look: The matter \*is \*settled, both in public opinion and the judicial system that observes it, despite some rear-guard potshots. There is no defensible, or even nonridiculous, legal or moral argument against SSM, or we’d have heard it by now. There are still some legal loose ends left to tie up, sure, but don’t kid yourself. It’s over. Civilization won. ---
**Author:** ![Nawth\_Chucka](https://avatars.discourse-cdn.com/v4/letter/n/c57346/32.png) [@Nawth\_Chucka](https://boards.straightdope.com/u/Nawth_Chucka)\ **Post date:** [December 28, 2013, 3:53am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/145 "2013-12-28T03:53:06Z")
> [@jtgain](#): > > As applied to Utah it is. \*\*The people of that state voted to enshrine “one man, one woman” into their constitution. \*\* One single unelected judge with life tenure undid that. No, a fraction of this state did so 9 years ago. And that fraction did not come close to the number of LDS in Utah. Nearly a decade later even fewer people (esp LDS) support that constitutional amendment today. There are legally married same-sex couple on our Air Force base, FFS. Your spoon-fed talking points must be delicious for how much you chew them over and over. ---
**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 28, 2013, 4:08am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/146 "2013-12-28T04:08:12Z")
> [@jtgain](#): > > …the concern that I have is that such a fundamental redefinition of a thousands of year old institution shouldn’t be done by one judge. > [@jtgain](#): > > As applied to Utah it is. The people of that state voted to enshrine “one man, one woman” into their constitution. One single unelected judge with life tenure undid that. Am I the only one amused at how quickly this went from being an institution thousands of years old to being an institution enshrined in their constitution only nine years ago? ---
**Author:** ![TimeWinder](https://avatars.discourse-cdn.com/v4/letter/t/bcef8e/32.png) [@TimeWinder](https://boards.straightdope.com/u/TimeWinder)\ **Post date:** [December 28, 2013, 6:23am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/147 "2013-12-28T06:23:36Z")
> [@jtgain](#): > > As applied to Utah it is. The people of that state voted to enshrine “one man, one woman” into their constitution. One single unelected judge with life tenure undid that. Utah is thousands of years old? ETA: Or, what several posters before me asked. ---
**Author:** ![MrDurden](https://avatars.discourse-cdn.com/v4/letter/m/ed655f/32.png) [@MrDurden](https://boards.straightdope.com/u/MrDurden)\ **Post date:** [December 28, 2013, 6:38am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/148 "2013-12-28T06:38:26Z")
Ahahahahaha, eat it you intolerant Mormon suckers! And hopefully the people in this thread who hold bigoted opinions that THEIR style of marriage is somehow better than what others with different values hold as TRUE be proven wrong for eternity. Weep. For the present is upon you, and the future will be no better for your kind. ---
**Author:** ![Mighty\_Girl](https://avatars.discourse-cdn.com/v4/letter/m/7bcc69/32.png) [@Mighty\_Girl](https://boards.straightdope.com/u/Mighty_Girl)\ **Post date:** [December 28, 2013, 12:57pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/149 "2013-12-28T12:57:09Z")
> [@TimeWinder](#): > > Utah is thousands of years old? > > ETA: Or, what several posters before me asked. What I find ironic is that Utah has a relatively recent history of non-traditional marriage. ---
**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 28, 2013, 3:25pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/150 "2013-12-28T15:25:19Z")
> [@YogSosoth](#): > > Now this just makes them seem incompetent. Its not like gay marriage snuck up on anyone, though the ruling by Shelby seems to have. But they should have stacks of templates of stay requests on file that they could easily fill out. What’s taking them so long? You have legal precedent in other states and cases where you could pull arguments from verbatim, and anybody can google such arguments in 5 minutes. Are they holding out hope that some super anti-same sex marriage argument will pop up in the next couple of days or something? Apparently, the Utah AG office now thinks it’s going to cost the tax payers [$2 million to hire outside counsel](http://www.deseretnews.com/article/865593145/Price-tag-for-defending-Amendment-3-expected-to-reach-2-million.html?pg=1) to keep Utah safe from Teh Gays. Humm. It’s too bad that attorney fees can’t be considered as harm to the State, or they may have a case. > [@Falchion](#): > > I was hoping for some reasoning. This case is factually distinct from a situation (like California) where they change state law; I wanted more than Carl Tobias’ (who I happen to be familiar with) say-so. I don’t know if it’s a “slam dunk” that the marriages would not be vaid; I just cannot think of a reason why they wouldn’t be void. It’s unfortunate that the news will quote experts but then not give any details. I’d love footnotes as well. I do see your point about how a reversal should make them void, so I’m curious myself as to why some hold the opinion that they would be grandfathered in. > [@Falchion](#): > > So I took advantage of a slow Friday and read the transcript of the stay hearing in the district court. And I think the problem here is that the AG’s office fouled up (I have also concluded that the plaintiff’s lawyer is really annoying and that people are, apparently, really informal in Utah. The guy from the AG’s office gets snippy with Shelby over the timing of the issuance of the opinion; you don’t talk like that to federal judges around here). > > They made two major errors: First, they didnt file the motion to stay fast enough after the order issued (Judge Shelby clearly thinks that they should have filed it while the merits opinion was pending, but I’ve certainly never seen that happen). There had already been hundreds of same-sex marriages performed by the time they got around to filing it. So, the “status quo” was less clear than it should have been. > > The other issue is that they presented the “harm” in two forms: First, striking down the laws of a state always harms the state. And second, voiding the marriages would harm the plaintiff. Number one, while true, isn’t compelling. And number two isn’t the right kind of harm for this sort of motion (it’s harm to the _moving_ party). They may have had more luck focusing on the administrative problems that will result from running a state with a number of uncertain marriages in it. An interesting read. I’m not a judge, but if I were and Ms. Tomsic said “gosh” one more time, I’d call her to the bench and slap her. I have a question for you. In his ruling denying the stay, he said that in the Prop 8 case, that the DI had filed a motion for a stay “in such a manner that permitted the judge to consider it simultaneously with the issuance of his ruling on the issues.” Looking online, there is a claim that Walker provide an advanced copy of his order to the two lead attorney of bother sides to allow them to take action. Is this common? Is Shelby being disingenuous in his claim? He says that that he had warned them on December 8th to be prepared, and should that have been enough of a warning? Looking at the other actions by the State team, they don’t look particularly good, though. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [December 28, 2013, 3:39pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/151 "2013-12-28T15:39:57Z")
[Shelby didn’t issue a stay because Utah forgot to file for one.](http://balkin.blogspot.com/2013/12/the-utah-attorney-generals-office-blows.html) ---
**Author:** ![Hakuna\_Matata](https://avatars.discourse-cdn.com/v4/letter/h/a88e4f/32.png) [@Hakuna\_Matata](https://boards.straightdope.com/u/Hakuna_Matata)\ **Post date:** [December 28, 2013, 4:31pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/152 "2013-12-28T16:31:23Z")
Thanks **Marley23** –that was an interesting read, and what I was alluding to earlier about the stay request. Several posters have stated it is routine, etc., but it appears you have to ask for it, and not assume it. Again I would be curious to know from the legal folks here is that true? Did the state bungle it or did the Judge catch them in a procedural item that is routinely granted? He makes a valid point it seems to me, if you wanted a stay you need to ask for one. I am just a lay person but it seems that often big cases are won or lost by just such procedural issues and this is just one of those cases. Probably why it is important to double and triple check that you have the bases covered! ---
**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 28, 2013, 4:37pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/153 "2013-12-28T16:37:09Z")
It sounds like they assumed they would win and didn’t bother to request a stay because of it. Conservative bubbles, again. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [December 28, 2013, 4:39pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/154 "2013-12-28T16:39:16Z")
I think it’s probably because the office is in transition and disorganized right now. ---
**Author:** ![EverwonderWhy](https://avatars.discourse-cdn.com/v4/letter/e/ee59a6/32.png) [@EverwonderWhy](https://boards.straightdope.com/u/EverwonderWhy)\ **Post date:** [December 28, 2013, 11:40pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/155 "2013-12-28T23:40:38Z")
> [@Marley23](#): > > I think it’s probably because the office is in transition and disorganized right now. Not only is it disorganized right now, it likely has been for the past year while Utah’s former AG John Swallow was under Federal and State investigation for corruption and bribery - leading to his resignation on December 3, days before the state argued their case before Judge Shelby. [Lawmakers look at more outside help for attorney general: Big-case losses, missteps, Swallow resignation raise concerns.](http://www.sltrib.com/sltrib/politics/57322378-90/office-attorney-general-state.html.csp) > [@](#): > > Utah’s fight against same-sex marriage may not be the only case in which the state seeks outside counsel to bolster an attorney general’s office that some legislative leaders, seeing missteps in big cases, fear is in some disarray from the yearlong probe and Dec. 3 resignation of John Swallow. > > … > > Hillyard said he first became concerned when the state lost a case that decriminalized polygamy. His concern heightened when it also lost the case on same-sex marriage — and federal judges in both cases were critical of actions by the attorney general’s office. > > … > > In the separate case that last week struck down the state’s same-sex marriage ban,\*\* the attorney general’s office neglected to file the usual request prior to a ruling for an automatic stay pending appeal should the state lose.\*\* That slip-up allowed opposing lawyers to argue the state must not care since it did not file the papers, and Judge Robert J. Shelby refused to stay the marriages. While I agree with Shelby’s ruling, I agree that a ruling of this magnitude should appear as ‘legitimate’ as possible, so I too was shocked that the ruling wasn’t stayed. However, all week long local news media in addition to analysis provided by University of Utah law professors, Paul Cassell (former US District Judge) and Wayne McCormack (Constitution Law), it certainly appears the state botched the case. FWIW, both professors find it highly unlikely or unprecedented that any SSM would be voided if Shelby’s ruling is overturned on appeal. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [December 29, 2013, 12:56am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/156 "2013-12-29T00:56:01Z")
“His concern heightened?” Ugh. /hijack ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 29, 2013, 1:02am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/157 "2013-12-29T01:02:32Z")
> [@ElvisL1ves](#): > > That seems an odd way to describe a ruling of the Supreme Court of the United States, even if you dislike the results.On what basis do you consider a ruling that conforms with SCOTUS to be likely to be \*overturned \*by it? It accurately describes how SCOTUS will rule on this case. 4 Justices have said that the constitution doesn’t require SSM. 4 Justices will vote that it does. Kennedy is the wildcard. He devoted pages of his opinion in Windsor discussing the traditional role of states in defining marriage. He may very well not be on board with your runaway train. > [@ElvisL1ves](#): > > Look: The matter \*is \*settled, both in public opinion and the judicial system that observes it, despite some rear-guard potshots. There is no defensible, or even nonridiculous, legal or moral argument against SSM, or we’d have heard it by now. There are still some legal loose ends left to tie up, sure, but don’t kid yourself. It’s over. Civilization won. I guess that settles it, then. No more need for Great Debates. We will simply decree our positions and that will be the end of it. Also, we can say that the other side is ridiculous and indefensible to further stifle debate. ---
**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 29, 2013, 1:49am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/158 "2013-12-29T01:49:11Z")
> [@jtgain](#): > > He may very well not be on board with your runaway train. :rolleyes: Somehow it’s always the people whose rights are in absolutely no danger of being denied who think those whose rights are right this second being denied are on some kind of “runaway train”. > [@](#): > > Also, we can say that the other side is ridiculous and indefensible to further stifle debate. We’re no longer allowed to state facts in GD? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [December 29, 2013, 1:52am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/159 "2013-12-29T01:52:52Z")
The runaway train of a couple of states a year recognizing same-sex marriages. ---
**Author:** ![Nawth\_Chucka](https://avatars.discourse-cdn.com/v4/letter/n/c57346/32.png) [@Nawth\_Chucka](https://boards.straightdope.com/u/Nawth_Chucka)\ **Post date:** [December 29, 2013, 4:26am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/160 "2013-12-29T04:26:22Z")
> [@jayjay](#): > > :rolleyes: Somehow it’s always the people whose rights are in absolutely no danger of being denied who think those whose rights are right this second being denied are on some kind of “runaway train”. > > We’re no longer allowed to state facts in GD? We’re in MPSIMS, opine away. I don’t know where \*\*jtgain \*\*thinks he is; my WAG is 1955. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=7) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=9)