For the record, the 18 states with SSM (so far) are:
California
Connecticut
Delaware
Hawaii
Illinois (takes effect June 1st, 2014)
Iowa
Maine
Maryland
Massachusetts
Minnesota
New Hampshire
New Jersey
New Mexico
New York
Rhode Island
Utah
Vermont
Washington
Eighteen, people! Thirty-six percent!
Per Wikipedia, it’s available in states containing 39% of the total US population.
Bricker,
Thank you for clearing that up, I was confused as to why something from the 9th Circuit did not apply to the entire group of states.
This leads me to a question, if you do not mind.
If the Tenth Circuit upholds this decision and Utah appeals to the Supremes, The Supremes uphold, this becomes the law of the land right?
This would be similar to what happened with Heller, I never understood why D.C. pushed it that far given the make-up of the Court at the time.
Do I understand this correctly?
Thank you and Merry Christmas
Capt
If they all have standing and the supreme Court finds a legal right to same SSM in the US constitution then yes it becomes law of the land for the entire country. If they choose not to hear the case then it’ll only stick to the circuit Court jurisdiction as listed before. Bricker, do you think we can read anything into the decision not to stay?
The ruling this week that Ohio must recognize SSM on death certificates already has cited Judge Shelby’s ruling, although obviously it’s not binding, of course.
For example:
As Judge Timothy S. Black of the US District Court of the Southern District of Ohio writes:
Both Black and Shelby are accepting the argument that there isn’t a fundamental difference between heterosexual and homosexual marriages, and therefore the laws and state constitutions must go.
This will be interesting to see how it plays out. I suspect that the end will be sooner than what I had feared.
But will they be invalidated?
Even if Judge Shelby’s decision is eventually overturned, the precedent from California is that those couples married before Prop 8 stopped weddings temporarily were not affected by Prop 8 – their marriages remained valid.
That certainly seems to be what GLBT couples in Utah believe – they are obtaining marriage licenses by the hundreds these last couple days (about 1 license per minute so far). Couples have been waiting in line for hours to get their license, and then get married immediately. They clearly think that once married, it will be hard for the state to take that marriage away.
One quibble with an otherwise good summary of events: Judge Walker’s opinion in the district court appeared (to me) to find a broad “fundamental” right to same sex marriage protected by the 14th Amendment. It was Judge Reinhardt’s opinion in the Ninth Circuit that recast the issue in terms of “offering marriage and then taking it away” as well as the unique posture of California in granting all the rights of marriage, but not the term, to same-sex couples. I raise that just to point out that (although I don’t know how) the CofA or the Supreme Court could find a way to recast the district court’s opinion to substantially narrow it in some fashion.
One fact that is worth noting is that, as I understand it (and Bricker can tell me if I’m wrong) is that the 10th Circuit using a “on-duty” panel of two judges to handle all motions (like the motion to stay). Which is to say that the merits panel may not (and need not) include either of the judges that decided the stay issue. (This is in contrast to other circuits where the merits panel decides motions). So, assuming that’s right, I wouldn’t think you could read too much into it.
One key difference is that the California Supreme Court authorized same-sex marriages and then people of California changed the law. There was no question that between the court’s decision and the adoption of Prop 8 same-sex marriages were lawful. There was no effort made to retroactively invalidate those marriages.
In Utah, by contrast, the only reason that same-sex marriages are legal is because of ruling. If the district court gets reversed, then those marriages were (presumbaly) unlawful from the get-go and are void ab initio.
Politically, it makes sense to me by advocates for same-sex marriage would encourage as many couples as possible to get married now, because, in the event that the district court gets reversed, it’s going to look bad to invalidate all these illegal marriages (although the concept of marriages that are void for being illegal is hardly a new concept). A cynic might suggest that part of this is designed to set up the next lawsuit in the event of a reversal. That’s also why the decision not to stay the ruling makes no sense to me at all. This is a profoundly unsettled area of the law and the problems that will result following a reversal seem quite significant.
In fact Shelby was supported by both of Utah’s senators. The other one is Tea Party favorite Mike Lee.
New Mexico isn’t conservative America at this point. It’s been moving into the Democratic column for a while, and they now have two Democratic Senators and the state went for Obama twice.
Would it be correct to assume that the last ditch effort to appeal the stay to the SCOTUS will take at least a few months?
I don’t think so. If I remember my procedure correctly, either the Circuit Justice (Sotomayor) can decide it or she can refer it to the Court as a whole. If she denies it, I believe Utah can appeal to the Court as a whole.
Traditionally, the Court acts on emergency stay requests quite quickly. (Although, Utah has indicatedit will take a few days to file the request).
I don’t know what the statistics are, but I would think it would only be a matter of days following the application.
The longer the delay, the bigger mess this will be. I’m sure the holidays aren’t helping but given the how strongly Utah officials oppose SSM I would think they would be hustling to get this filed today.
According to the L.A. Times, the justices tend to respond quickly to emergency appeals. But if they don’t act on the emergency appeal, Utah will have to go through regular channels and people will be able to get married for months.
I follow up my post with two examples: here and here in which the emergency stay was decided same day or next day.
Curiously, as I understand it, if Sotomayor denies the stay without refering it to the Court, then Utah can apply to another Justice. But can they just pick one? Or is there some rule as to who they can ask?
From what I have read, if Sotomayor denies, they appeal to the entire court who take a vote. Once Sotomayor gets the official request, it would typically take two days for a decision. She is obviously well aware of all of this and probably is preparing.
Utah may be taking some time on this so that they won’t be as half assed as they were with the 10th Circuit. They probably never imagined that they would lose their emergency appeal.
So, as I should have, I went to the rule. As I read paragraph 4, Utah could make the application to “any other Justice” (unless it has to be the “next junior” justice referenced in Paragraph 3? I don’t think so). I think she’s going to need to refer it to the Court. Otherwise this thing kicks around too long.
It does occur to me that my shock at the stay being denied could easily be explained if the state just did a crap job presenting it. I have seen numerous situations (especially in the context of things like stays, reconsideration, or modifications) where a motion that probably ought to be granted gets denied becuase the party presents it the wrong way. I don’t have the time or the energy to read Utah’s briefs in the 10th circuit.
It looks like the largest hold-out, Utah County has started to issue marriage licenses. They had refused on Friday and Monday, and a couple notified them of an intent to sue.
From my reading, Hatch was more instrumental in getting his nomination going. Hatch is a long-time ultra conservative member of the judicial committee.
That’s probably the case. It could also be that by Day III, most of the “damage” to traditional marriage has already occurred.
700 marriage licenses had been issued to same-sex couples as of Monday night. Even with the Christmas break I’m sure it’s over 1,000 now.
And the governor instructed everyone to comply. Some counties held out as long as they could and I think they were at risk of being in contempt if that continued.
You’re right. I just thought it was worth pointing out that Lee also backed the nomination. He’s even more conservative and Hatch is pretty open in his disdain for Lee, but they came together to support the guy.
It seems to me that there’s no question of same-sex marriages in Utah right now being illegal since they are occurring under the threat of contempt from a court that has the proper jurisdiction to so order, and they’re being issued by the relevant state authorities (albeit under protest in some cases). Even if the Tenth Circuit overrules the district judge and says that he got this case wrong, that wouldn’t affect his underlying authority here. This isn’t a situation, in other words, where a local city official or county clerk has gone outside their job responsibilities and started issuing same-sex marriage certificates where they’ve been instructed not to. I’d be astounded if these marriages were later revoked, regardless of what happens on appeal; you’d think that the couples in question are entitled to rely on official state actions. But as you say this is not a clearly settled issue of the law.
The district court does not have authority to simply order people married. Assume that Tenth Circuit (or Supreme Court on down the line) reverses the district court. That means that the Utah laws on marriage are not (and were not) unconstitutional.
This creates a whole population of people who were issued marriages licenses despite entering a marriage in contravention of the laws of the state. Typically, that renders a marriage void (there are plenty of examples unrelated to same-sex marriage where the clerk issues a marriage license and the parties go through a marriage ceremony and its duly recorded, but the underlying marriage is illegal - for example, the mistaken bigamist type cases or an illegitimate celebrant).
This is why a stay seems so obviously necessary to me. I do not know how it could be that (assuming a reversal) the marriages aren’t void ab initio (they don’t get “revoked” - that was the California problem - they simply were never valid at all). The problem isn’t the issuance of the license. It’s that there are requirements for a valid marriage and if they’re not met, the marriage was never valid. I put a reversal in the same category as later discovering an impermissible level of consanguinity.
The district judge can rule that a state law violates the Constitution, though, which is what he’s done. So he’s got the power to order the state to not enforce their law, and even the Utah AG’s office appears to agree that this is a legitimate (although in their opinion incorrectly utilized) power of his. So as of this moment it’s not illegal for a same-sex couple to get married in Utah, since the official county clerks and relevant state officials are following the judge’s order. If the Tenth Circuit later reverses him, then it will become illegal once more. If I were a member of a couple that got married during that window - if indeed it is a window - I would raise holy hell about my ability to rely on official government processes in a predictable fashion if the state tried to retroactively void my marriage.
Of course then you would also have similarly situated people who missed the window for whatever reason raising equal protection complaints against the state for treating them differently. Everyone knows this, which makes me think that the Tenth Circuit is probably going to uphold the district judge. If they aren’t inclined to do that then their refusal to issue a stay ensures that there’s going to be all sorts of litigation for years about this.