I think that latter question depends on the law of the “receiving” state. Florida (for example) recognizes only those out-of-state marriages which were legal according to the law of the “sending” state when solemnized. So your Kentucky marriage wouldn’t be recognized.
As to the “big question” - which I agree is a problem - it’s not harmful to the party seeking a stay (as you concede), so it’s not really relevant. Having said that, under Winters another factor is whether a stay is in the public interest, and that’s arguable.
Are there states where that’s not true? I mean, most states recognize most marriages that were legal in the place formed, even if illegal in that state (for example, to the best of my knowledge, all states that do not recognize common law marriages do recognize out of state common law marriages, if properly formed in that state). And some states void marriages that, while legal where formed are not legal in that state (same-sex marriage being an obvious example, but I think that’s true in some places for cousin-marriage). But does any state recognize a marriage that was illegal in the place “formed” but would have been legal if it had been formed in that state? I can’t imagine that the answer is yes.
Right. Like I said, I’ve become wobblying on the stay issue, because the harm of a reversal is really to the plaintiffs. But the scope of the problem seems to support a stay, either under the public interest prong or under the “just because” prong.
I know there are some states which recognize marriages which were void when solemnized but are now valid under the law of the sending states. I don’t remember what they are, but I vaguely recall that Louisiana is one. I think it goes under ratification (like a spouse not renouncing a marriage that was void when contracted because he/she was a minor).
Also, I know that some states have protections for “putative marriages” which are (as I understand it) marriages that were entered into in good faith, but nonetheless void. Typically, I think, an unqualified celebrant, a flawed license, or some such. I don’t believe that Kentucky would give me and my cousin-wife any protections at all. And, of course, being mistaken over whether you’re divorced is a crime, not just a void marriage.
Edit: My point really is that this stuff is complicated under the best of circumstances. It was one of the worst bar exam subjects (after the UCC, which I just can’t handle). No need to make it even worse by not staying the ruling!
Nah, Utah’s a uniform bar exam state. I assume it’s easy.
What you need to not do is take it in a place that has too much legal history (like I did by taking Virginia. Establish a legal system in the 1600s and you find yourself still filing demurrers and writs of fieri facias in 2013.)
This board definitely leans left, so the only hyperbole which goes over well is from us progressives.
On a tad bit more serious note, I can’t image that some time in the far distant past, say 2009 or so, that a Federal judge would issue a similar rule, that (1) they wouldn’t automatically stay their rules, (2) that they wouldn’t accept a verbal request to stay pending the written request, (3) that if they didn’t and hundreds of gays started marched down to city hall that the city office wouldn’t hold up the marriages like Utah County did, (4) and that the District Court wouldn’t issue a stay so fast the ink wouldn’t be dry on the signatures before the PDF was made.
On an ex-Mormon board, one of the people posting there is a volunteer for helping file taxes for AARP, and relates that since Wendsor, there already exists a state of confusion on how to handle state returns for SSM couples.
The law states, and the software insists, that except for unusual circumstances that couples must file the same status for their state returns as for their federal returns
and much of the information on the state forms come from the federal forms.
The Utah Tax Commission first said that the SSM couples could file as married, filing jointly, but the AG office found out and overruled that. They then said that SSM couple would have to redo their federal forms filing as either married, filing separately or single (the AG office hadn’t determined that prior to Shelby’s ruling) and then use these unfiled federal forms as the basis for the state forms.
The volunteers at the AARP were trying to figure out how to do this, as the software they use doesn’t allow people to file multiple copies of the federal forms with the same social security number.
This poses some interesting questions on who is harmed more if there is a reversal. As another poster noted above, one of the reasons for the rush for marriage could well be to take advantage of getting married in this calendar year. Of course, if it’s reversed and the marriages are invalidated, they will have to refile.
On a separate note, there are many signs that while the LDS leaders are still venomously against SSM, many (although not a majority) of the rank-and-file members are coming out in support of SSM. Most famously, Steve and Barb Young (the quarterback and his wife) are strong supporters of LGBT rights and released a message supporting this case. Steve is a descendant of Brigham Young and is considered part of Mormon royalty. The Salt Lake Tribune, which used to be the “anti-Mormon” paper until the Mormon owned Desert News had to retreat to an online presence only, ran on opinion piece from a Mormon calling for the Church to change, as it did with the reversal of the previous doctrine forbidding Blacks from holding the priesthood.
Although Mormon pioneers were famously in the refusal to accept much of the degrees from Salt Lake, the modern church has not seen this much public questioning of the guidance from the top, as it is considered divinely lead and inspired.
I guess now on the reason that the AG office was in so much of a uproar. The Trib reportsthat
and goes to explain that the same consultant was used by many Republicans such as Orrin Hatch. This was coming out right when the Shelby ruling was released.
While there isn’t any immediate indication that the other Republicans did the same illegal or highly unethical actions which form AG Swallow is accused of, no doubt the AG offices was in complete disarray. They would be in full crisis mode.
It’s interesting that the promised appeal to SCOTUS has not materialized yet. Although this doesn’t mean this is a sure-fire win, fighting for a stay must not be as easy as some were saying.
I really think it’s Game Over. Maybe not this particular case, but much sooner than later. There are too many cases moving forward and if SCOTUS isn’t ready to allow a broad movement like this, the issue will get chipped away.
Scalia is right. The logical conclusion is equal rights.
I know nothing about Utah State Taxes, but I have a fair amount of experience with filing federal taxes under crazy SSM rules. Prior to TY2013 the software I use instructed me to create THREE separate files for our taxes. One single for me, One single for my husband, and one married. We filed the two single federally and the one married to the Commonwealth.
It seems to me that for a state without SSM (not Utah since SSM in Utah seems legal now) and a couple legally married elsewhere, they would have to file married to the federal government and singly to the state (twice). Essentially, this would be the reverse of what I did for the past 9 years. Admittedly, it is a pain in the ass. Good luck.
I doubt the IRS would require refiling should the marriage status retroactively change. In my case, due to Windsor and IRS decree, I have the option to refile my taxes for the past three years, but I am not required to do so. I would expect a similar situation for Utah if it came to that.
(Is it weird that I’m kind of looking forward to filing taxes now that DOMA is dead?)
It depends, many of the “old folks” and even their children and grandchildren still harbor those nasty views, just not openly. Out in the country you still hear the n-word being used by rednecks. Some of us came to our senses and do our best to pass on the ideals of racial equality, but it’s a slow process.
Many of us also believe in marriage equality and strive to pass that on as well.
Out of curosity, my wife and I showed our 7 year-old daughter the Cherios commercial with the mixed race family and asked her if she noticed anything unusual about it. She watched it twiced and then asked, “Is it something about the bowl?”
The state expects that legal costs to fight to keep their law could cost upward of US$2,000,000.
My favorite line from the motion is this one:
I think it is indisputable that Utah has a “powerful interest” in that, but why should that be anything the state is able to do if it conflicts with the US Constitution? I can’t wait to hear them answer that question in front of the entire SCOTUS.
I think comes down the the argument that somehow allowing SSM will harm the institute of marriage itself, which is repeatedly stated but I have yet to see a convincing argument.
Me either, and we never will. If such an argument could be made, it could be made for everything. Boy Scouts taking in gays? The state has an interest in who is a Boy Scout, so no way. Your bridge club wants to start playing Euchre as well? The state has an interest in what card games are played at clubs, so no way.
The state may very well have an interest, but that in no way makes it a valid one.
I cannot understand the argument that a state does not have a “valid” interest in which marriages it licenses (or how it handles the incidents of marriage) or how it is somehow comparable to regulating private associations. I would have thought the argument would go something like: Of course the state has a valid interest in regulating marriage, and it has wide authority to determine the requirements for a marriage license but, as with all exercises of the state’s regulatory authority, that authority is not limitless and this is an impermissible criteria for determination.
The argument does not happen in a vacuum. The state does NOT have a valid interest in regulating marriages within its own jurisdiction when it violates the Constitution and harms the civil rights of its citizens. Their interest does not trump those facts
There is no such thing as an interest that trumps the Constitution, so, at best, that argument simply begs the question in a fairly feeble manner. But, the explicit references to things that the government has no valid interest in regulating (bridge clubs and Boy Scouts) suggests that that was not the argument. Particularly with the Boy Scouts where we‘ve actually litigated that question.
I found this part particularly nauseating (from page 17-18):
Sexist claptrap. Assumes all men are the same and all women the same, totally ignoring the broad diversity of gender expression among men and women. The State doesn’t even attempt to define actual qualities and characteristics of ideal parenting - it just magically attributes it all to ‘gender complementarity’. Not to mention the ‘responsible procreation’ argument is simply not all that compelling, as postmenopausal women, infertile heterosexuals or heterosexuals who choose not reproduce, and even prison inmates can be legally married (as was discussed in oral arguments in Windsor).
Perhaps the state of Utah should enlist outside counsel from Uganda.
