# 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:** 9
**Author:** ![MrDurden](https://avatars.discourse-cdn.com/v4/letter/m/ed655f/32.png) [@MrDurden](https://boards.straightdope.com/u/MrDurden)\ **Post date:** [December 29, 2013, 8:29am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/161 "2013-12-29T08:29:13Z")
Your way of life is ending… posters with the agenda against gays akin to the views of “segregation now, segregation tomorrow, segregation forever” You know who you are. And you know history will look at your bigoted ways the same way. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [December 29, 2013, 11:20am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/162 "2013-12-29T11:20:32Z")
> [@Marley23](#): > > The runaway train of a couple of states a year recognizing same-sex marriages. Well, actually, it kind of _is_ becoming a runaway train–2013 saw [federal recognition of same-sex marriage](https://en.wikipedia.org/wiki/United_States_v._Windsor) _and_ [state recognition of same-sex marriages in Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico, and Utah](https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#States_that_license_same-sex_marriage_.28table.29), and all that followed close on the heels of November 2012, where SSM was passed or confirmed by popular votes in Washington, Maine, and Maryland. I guess we need a _positive_ metaphor for “runaway train”–“justice rolling down like waters and righteousness like a mighty stream”, maybe, Biblical\* though that may be. \*By way of Martin Luther King. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 29, 2013, 3:38pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/163 "2013-12-29T15:38:58Z")
I like “juggernaut,” but that may not have the positive connotations you’re looking for. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 29, 2013, 3:46pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/164 "2013-12-29T15:46:00Z")
> [@jtgain](#): > > Kennedy is the wildcard. He devoted pages of his opinion in Windsor discussing the traditional role of states in defining marriage. And quite a bit more explaining how denying SSM is a violation of the 14th Amendment. Which, as you know, trumps anything the states might want to say about it. > [@](#): > > He may very well not be on board with your runaway train. Continuing your conjecture, in what way would you think he could rationalize allowing a violation of equal protection to continue, even if he wanted to do so (which does not appear to be the case)? > [@](#): > > 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. Given that your side has had all possible opportunity to make a defensible case, and has failed utterly to do so, it’s simply necessary to conclude that there isn’t one to be made. Time to join the 21st Century, friends. ---
**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, 3:51pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/165 "2013-12-29T15:51:25Z")
It’s interesting that **jtgain** has managed to fly under my homophobia radar for so long. Until this thread, I was aware that he was fiscally conservative, but wasn’t really aware that he was so socially conservative as to be one of the “traditional” marriage apologists. Am I just really asleep at the wheel or did that come as a surprise to other people? ---
**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 29, 2013, 3:58pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/166 "2013-12-29T15:58:14Z")
Those people in the South who thought that segregation was a good thing and the will of the majority. I wonder how their grandchildren feel about them. Sure, they love their grandparents but they must certainly feel shame knowing how they felt. Do the old folks keep their old views quiet out of utter embarrassment or do they explain how stupid and evil their old views were as an object lesson? ---
**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, 4:07pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/167 "2013-12-29T16:07:17Z")
> [@MEBuckner](#): > > Well, actually, it kind of _is_ becoming a runaway train–2013 saw [federal recognition of same-sex marriage](https://en.wikipedia.org/wiki/United_States_v._Windsor) _and_ [state recognition of same-sex marriages in Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico, and Utah](https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#States_that_license_same-sex_marriage_.28table.29), and all that followed close on the heels of November 2012, where SSM was passed or confirmed by popular votes in Washington, Maine, and Maryland. I know. And yes, this has happened very quickly and we have passed a tipping point: this is no longer an issue where the outcome is in doubt. I was highlighting the absurdity of using a metaphor like “runaway train” (out of control thing that could end in a huge disaster) to describe a change that is being enacted through the political and legal process and could not possibly harm anyone. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 29, 2013, 4:14pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/168 "2013-12-29T16:14:59Z")
> [@jtgain](#): > > … > But 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. He surely realizes that there is another side to this argument and that his opinion isn’t the final word. As such, he should stay the ruling until there is at least a judicial consensus on the way to proceed. > … > [@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. **jtgain** , although you’re arguing this as a basis for an automatic stay, ultimately this argument means that you disagree with judicial review. There will always be more voters and more legislators voting on a matter than there will be judges ruling on it. Nor will there necessarily be a judicial consensus on this issue. Judges can be divided on an issue just like voters and legislators, and waiting for a judicial consensus as a condition for judicial review is fruitless. For instance, wiki indicates that there are 12 active and 10 senior judges in the 10th Circuit. If this appeal goes to an en banc, it is conceivable that the 10th Circuit could overwhelmingly overturn the Shelby deciison; heck, it could even be unanimous to overturn, 22 circuit judges ruling against SSM. Then it could go to the Supreme Court, which conceivably could restore Shelby’s decision by a 5-4 split. So it’s possible that you might only have 6 judges out of the 32 who have considered the case ruling that the Utah SSM provision is unconstitutional. Ultimately, arguments about “a single judge” doing something significant are a sub rosa challenge to judicial review itself. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 29, 2013, 4:18pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/169 "2013-12-29T16:18:48Z")
> [@jtgain](#): > > Well, if the case turns out the way Utah wants, the harm to the state is that its public policy regarding marriage will have been violated causing marriage licenses to issue, benefits to be paid to couples, administrative policies to be written and rewritten, estates administered and possibly undone, and probably most importantly, the power of the state of Utah to define marriage as it sees fit under the tenth amendment (if that is the ultimate outcome) will have been impermissibly thwarted by the federal government in an unconstitutional power grab. **That can never be undone.** Except that’s the whole point of a successful appeal: if Utah is successful on appeal, all of that will be undone. There will have been a temporary glitch in all of Utah’s powers that you’re concerned about, but if the courts rule in Utah’s favour, the situation will revert to the status quo ante. It short, it will be undone, if Utah is successful. ---
**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 29, 2013, 4:23pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/170 "2013-12-29T16:23:31Z")
> [@hajario](#): > > Those people in the South who thought that segregation was a good thing and the will of the majority. I wonder how their grandchildren feel about them. Sure, they love their grandparents but they must certainly feel shame knowing how they felt. Do the old folks keep their old views quiet out of utter embarrassment or do they explain how stupid and evil their old views were as an object lesson? Sorta like [this](http://bobcargill.files.wordpress.com/2012/05/535132_10150690521932395_705822394_8026655_1008504104_n.jpg)? ---
**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 29, 2013, 5:03pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/171 "2013-12-29T17:03:17Z")
> [@silenus](#): > > Sorta like [this](http://bobcargill.files.wordpress.com/2012/05/535132_10150690521932395_705822394_8026655_1008504104_n.jpg)? That exact picture was the background on my computer at work for months until SSM was legal in California again. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [December 29, 2013, 10:14pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/173 "2013-12-29T22:14:35Z")
There can be non-trivial harm in waiting. Now that DOMA is struck down and the federal government recognizes gay marriages, there are issues with regard to filing taxes (mentioned upthread) and other federal benefits, such as immigration. There is also an understandable rush to take advantage of a right that may soon be taken away, as it was in California. There’s an emotional issue, too. I had always dreamed of being married in my hometown in California, but because my husband is not American and DOMA was in force, we could not be married in the US without violating his visa and thereby potentially causing huge problems down the road. If we had still been unmarried when that part of DOMA was repealed, I would have been there like a shot lining up for a marriage license. We were in California during the first window that allowed gay marriage and couldn’t take advantage of it and that was quite a bitter pill. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 30, 2013, 3:37am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/174 "2013-12-30T03:37:53Z")
I just finished reading the thread up to this point and wanted to thank everyone for their contributions; this has been an incredibly informative thread thus far and although differing opinions are being expressed its all very civil. Thank you, Dopers! ---
**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 30, 2013, 4:20am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/175 "2013-12-30T04:20:25Z")
This made me so very happy today! They haven’t had any yet but Hill Air Force Base (where we’re stationed) [will allow weddings](http://www.sltrib.com/sltrib/politics/57326339-90/sex-hill-military-base.html.csp) for any couple at its facilities. ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [December 30, 2013, 4:36am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/176 "2013-12-30T04:36:08Z")
> [@hajario](#): > > Those people in the South who thought that segregation was a good thing and the will of the majority. I wonder how their grandchildren feel about them. Sure, they love their grandparents but they must certainly feel shame knowing how they felt. Do the old folks keep their old views quiet out of utter embarrassment or do they explain how stupid and evil their old views were as an object lesson? I live in the South, and I have a feeling that, unlike your implication, many of those grandchildren think their grandpa fought the good fight to keep the negroes down, and they’re annoyed that it’s no longer ok to talk about it openly. Of course, _some_ of those grandchildren are probably horrified to find out what grandpa did, but it’s not as widespread as either you or I wish it was. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 30, 2013, 5:44pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/177 "2013-12-30T17:44:26Z")
**jtgain** , what is your purpose for posting in this thread? I ask you think honestly and without snark because I think that you know this board doesn’t take hyperbole well, and if you sincerely are trying to convince people, you have to let go of the “marriage never ever changed in all of history until now!” exaggeration or “one judge doing his job is activist!” overreaction. One big hurdle I see in the anti-gay marriage side is they pretend the whole of civilization is on the line, that its this far and one step further and we go off the cliff into a Caligulan nightmare while Apocalypse descends. Can you see that its not very convincing when we have countries and states that have gay marriage for years already and life goes on? I’d like you to try to say something to yourself: “One judge changing marriage is not the end of the world, I simply disagree with him but he has every right to do what he did.” Follow that up with “If the SCOTUS makes gay marriage the law of the land tomorrow, life will go on and I will have simply lost the argument, but nothing bad will happen to America.” And finally: “I disagree with gay marriage but acknowledge that it affects no one else except those within the marriage.” Can you say that to yourself? Can you say it to this board? ---
**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:** [December 30, 2013, 5:58pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/178 "2013-12-30T17:58:06Z")
> [@Bricker](#): > > Well, my day at the racetrack was not a predictive success, it seems. > > I am surprised at this. > [@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! I was surprised too, but since we have a somewhat-established precedent that later rulings will not invalidate any post-trial marriages, it’s hard to demonstrate irreparable harm. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 30, 2013, 6:50pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/179 "2013-12-30T18:50:11Z")
> [@YogSosoth](#): > > I thought that most people, including the writers of the articles published since then, felt that the unusual circumstance of not granting a stay is a good indicator of the position of the court? Shelby, apparently, rejected the stay because the state basically used the same arguments to push for a stay that Shelby had already ruled against in the verdict. If that was what he thought of the motion, surely there is a more than 50% chance that one can say the 10th district, looking at the same motion, rejected it for similar reasons, especially since by all intents and purposes, they went against typical precedent to do so. It may be one factor, but given everything else, I think its a big factor, maybe even the main factor All I’m saying is this: there is an inherent absurdity in asking a judge to conclude that his own opinion is likely to be reversed and the 10th Circuit panel that decided the motion isn’t going to be the same panel that decides the merits, so I wouldn’t read too much into it. Most stay denial opinions by district judges that I have read suggest that the party arguing “likelihood of success” is really just saying “the court got it wrong” and aren’t impressed by it. But some number of them are reversed. Further, assume that an opinion is 75% likely to be reversed, but there would be no harm from not granting a stay, in that case a stay probably wouldn’t issue. (These aren’t automatic after all). Anecdotally, I have seen stays granted merely on the harm basis; stays granted when the district court is almost certain to be affirmed; stays denied where there’s a decent chance of reversal, but no harm. I’ve seen stays denied where the judge clearly knew that a stay was warranted, but the moving party presently it poorly. > [@](#): > > It sounds like to me that you feel that in all cases, stays should be automatic and the status quo maintained until all avenues of appeals have been settled. To say otherwise that stays should be rejected in some circumstances is to admit that in this case, Shelby clearly felt the situation warranted the denial of the motion. What logic do you have to argue that in this particular case, a stay is warranted and a mistake was made in not granting it? I would be inclined to grant a stay in any case that involves injunctive relief of this sort; especially ones where non-parties are likely to rely on the decision under appeal. Here, I think that the legal issues are much less clear than some would admit and the chance of reversal is much higher than those claiming “game over” allow. I think that the “chance of reversal” prong tends to shift towards a stay in any case where a district court decides that binding Supreme Court precedent no longer applies. I am changing my mind, however, on the “harm” prong. Because, as has been pointed out, the “harm” that would be caused by a reversal isn’t to the moving party, it’s to the people whose marriages are voided. But while that might be a factor under the “public policy” prong, it’s not a “harm” that fits into the “harm” analysis. If, however, as some argue, the marriages will remain valid, then the irreparable injury to the state is clear: they have to recognize illegal marriages. If they don’t, then there will be substantial harm to some of those couples, but that’s an assumed risk. Still, I think that chaos that will ensue is sufficient to suggest that a stay was appropriate (and if, as suggested, Shelby would have stayed the rule if the motion had been filed faster, then perhaps he agrees with me). > [@Really\_Not\_All\_That\_Bright](#): > > I was surprised too, but since we have a somewhat-established precedent that later rulings will not invalidate any post-trial marriages, it’s hard to demonstrate irreparable harm. I think this is entirely wrong. I remain unconvinced (but willing to be convinced) that the marriages would remain valid in the event of a reversal (the only other example that I’ve been shown - California - is just too factually different to constitute precedent). But, it’s the state (as the moving party) that has to show irreparable harm. If the marriages are void, then it probably hasn’t suffered any harm (and therefore no stay). If, on the other hand, you’re right that the marriages aren’t invalidated, then the state will have suffered a fairly clear irreparable injury in having been forced to recognize illegal marriages. ---
**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:** [December 30, 2013, 7:04pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/180 "2013-12-30T19:04:25Z")
I don’t think that signifies. Assuming an appellate reversal, the state won’t necessarily have to recognize the marriages anymore, so the harm isn’t irreparable. The marriages would remain generally valid - like any marriage conducted outside of Utah’s jurisdiction - but void in Utah. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 30, 2013, 7:27pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/181 "2013-12-30T19:27:17Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t think that signifies. Assuming an appellate reversal, the state won’t necessarily have to recognize the marriages anymore, so the harm isn’t irreparable. The marriages would remain generally valid - like any marriage conducted outside of Utah’s jurisdiction - but void in Utah. I would think it the case that a marriage that was void in the place of formation would be void everywhere. For example, post-_Windsor_, the federal government has adopted the view that a person is “federally married” if their marriage was valid in the place that it was solemnized. That’s design to keep federal benefits for a same-sex couple that moves from, for example, Massachusetts to Virginia. But, a same-sex couple that moves from Utah to Massachusetts? Do they have to remarry? Is their marriage valid in Massachusetts but not federally? I don’t know the answers to these things. None of that is likely to harm _Utah_, so maybe no stay. But it’s a pretty big question that, to me, augers in favor of a stay. Also, consider this hypothetical. I marry a woman in Kentucky who turns out to be my first cousin (Kentucky, of course, being a state in which such marriages are illegal and void), but I don’t know it at the time. Before I find out, I move to California (which has embraced consanguineous marriage equality), and then we discover she’s my cousin. Are we still married? There must be an answer to that. I think it’s “no” because our Kentucky marriage is void and California merely recognizes the out of state marriage. But I don’t know. But I think our nomadic homosexuals would find themselves in the same situation. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=8) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=10)