Had a coworker take Monday off to go down to the court house and make it legal after 29 years, everybody in the office seemed happy for him. And this is in Utah County. If anybody had any negative feelings about it they kept quiet. As a tech company we tend young, but I think that even Utah voters are starting to come over on this issue.
Holding my fingers that this goes to the supreme court and makes it legal nationwide.
I think that Kennedy certainly votes for a stay. 5-4 to issue the stay. I think it is irresponsible for the District Court and the 10th Circuit NOT to issue a stay in such a contentious case regarding a harshly disputed issue. These courts are using these “early adopters” as pawns in a political game.
It is a cynical move to put Judges and Justices in the position of having to void thousands of same-sex marriages in Utah to vote for something that until recently was not a disputed constitutional issue.
In one of the reports I read, a University of Utah law professor said that even if the ruling is later overturned that the marriages should remain valid.
I’m not an attorney, but it seems to me that if the ruling is overturned the marriages which had been performed during that time would be grandfathered in under his reasoning. Right now, the law in the state of Utah is such that people of the same sex can enter into marriage. Reversing that ruling would reestablish the law that people of the same sex could no longer enter into marriage, but that would not change the status of people who had gotten married during the period when it was allowed.
As others point out, this is different than the original case in California where San Francisco went rogue and issued marriage certificates which were not valid under state law.
It looks like all the counties in Utah now are in compliance. One technically isn’t issuing marriage certificates but that’s because the county clerk is on vacation and no one is getting any, gay or straight. The county only has a thousand people, so it’s not a big deal.
Wow. Although technically it would be going “up” to the court house since on Monday he would have had to go up to that bastion of liberalism, Salt Lake, to make him an honest man. 
I never, ever thought that my sister would be able to get married in Utah. The Mormon blogs are strangely silent about this as well. I suspect that even the reddest of the red in Utah realize that it’s Game Over. Humanity wins.
Like you, I hope that this stays.
Perhaps there is a precedent specific to Utah: were existing legal polygamous marriages in Utah invalidated when the new Utah Constitution prohibited yhrm in 1896?
This is different in that they were never legal to begin with and while there were additional laws enacted which specifically clarified this, it’s clear that the Mormon marriages were performed illegally.
Mormon polygamy started in Illinois, and was illegal under its laws and then continued in US territory (which became Utah territory) and polygamy was illegal under US law. Polygamous marriages were also performed in Canada and Mexico and were illegal there as well.
So the answer is no. There were no legal polygamous marriages in Utah.
ETA: IIRC, most of the additional laws concerned illegal cohabitation with other wives, as they were not legally married. I’d have to look that up again, though.
From the AG office:
It looks like they need outside help.
Was there any Federal law prohibiting polygamy prior to the Morrill Anti-bigamy law from the Civil War time? I didn’t think Congress took much interest in such matters – those were left to the individual states.
Mormons had settled in what is now Utah well before that, in the 1840’s, and their territorial laws certainly didn’t prohibit it. The territorial Governor was Brigham Young, with a multitude of First Ladies.
Absent a Federal law prohibiting it, I would think that polygamous marriages in the Utah territory during the 1840’s & 1850’s would have been legal.
I would be interested in reading his reasoning on why they would be valid. Because I just don’t see it.
Take two examples: First, you have your “gays gone renegade” situation in which the clerk is issuing licenses in obvious contravention of state law. No question that those aren’t valid. Second, you have the In Re Marriage Cases to Prop 8 period in which the law of California is actually being changed from allowing same-sex marriage to banning it. There, no question that marriages entered into in that period were lawful, under state law.
Here, however, a reversal of the district court (potentially) vacates the judgment. That “render[s] it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause.” * United States v. Ayres *, 76 U.S. 608 (1869). So it simply doesn’t operate like the Prop 8 situation in which the law has been changed twice (here, once by Shelby to allow them and then by the hypothetical appellate court to ban them). Rather, if the district court gets reversed, then they were never legal at all becuase Shelby’s ruling is void.
Now, I don’t know if the status of the parties who have entered into void marriages is governed by state law; it probably is. Some states have a doctrine of “putative marriage” which grants certain rights to people who, in good faith, enter an illegal marriage. Maybe Utah has that? I don’t know. But I don’t understand how a reversal of the district court doesn’t render the marriages void ab initio.
Which is why failing to grant the stay seems outright irresponsible to me. Assuming a reversal (and, to be clear, I’m not expressing an opinion on how likely or desirable that is), you either have couples in void marriages claiming that they’ve been defrauded somehow. Or you allow them to stay married and the next plaintiff pointing to the number of same-sex married couples as evidence that the marriage laws serve no rational basis (or that the state has to recognize out of state same-sex marriages because it has some in-state same-sex married couples) (cf. the references in Perry to the number of same-sex married couples in California)
(Note: I’m not ignoring Ambrosio Spinola, I just don’t have anything to say that isn’t included here).
Regarding the original application for a stay, I have been in that position as counsel: arguing to a lower court judge that he should grant a stay pending appeal. It is a tough argument to make, because part of the test is that there’s a strong case for an appeal. That’s a hard case to make to a judge who has just delivered a judgment that he’s worked on for several months and which he believes is the correct statement of the law.
I had a question on this–is a stay something that a judge automatically does, or is it required that the lawyers involved petition for a stay? And further, is it required that they petition at the time of the decision or when the issue is either presented to the judge for decision, or even when it is first presented to the judge as an issue? I have read in comments on this case (but haven’t seen anything that backs it up) that they state was so confidant in their position that they never filed for a stay until after he made his decision, as they didn’t feel they would need one.
So did this judge decide to not grant the stay since they didn’t petition him at the correct time? If there was to be harm to the state, perhaps his reasoning was the state should have anticipated this and filed accordingly to protect that position? Since they didn’t do this then the argument that harm to the state would occur isn’t valid.
But it is usually done as a matter of course in such contentious and divided issues so as NOT to have the situation we may have in this case: the potential of thousands of void marriages as a result of the judge’s decision. Imagine an alternate reality where a District Court had ruled segregated schools to be unconstitutional and ordered immediate desegregation. Kids are attending class at integrated schools only to have the Circuit Court reverse and send kids back to the segregated schools mid year, only to have Brown v. Board send them back to the integrated schools. This is why you don’t play ping pong with people’s lives and only order social change when it is settled from the highest court that will hear it.
He clearly thinks that he is correct, but must temper that certainty with the knowledge that he will likely be reversed by the 10th circuit, and that his ruling ultimately hinges on the thoughts of Anthony Kennedy. As such, despite his strong convictions, it is a strong case on appeal and he should stay his ruling.
The argument I’ve seen is that under common law, polygamy has always been illegal. This was quoted in Reynolds v. United States - 98 U.S. 145 (1878).
There have been a number of law professors who have said the marriages will be valid. Here’s one.
There are some similarities with New Jersey.
Here are two different appeals courts and both refusing to grant stays. As I said, I’m not an attorney, but it’s obviously not the slam dunk which you are claiming.
Why then did the 10th circuit decline to stay the ruling?
“Likely”?
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?
Those sort of things are very much a matter of the practice in each court. In my jurisdiction (Saskatchewan), there are some matters where filing an appeal automatically stays the judgment below, but in most matters you need to make an application at the time of the filing of the appeal.
I’ve not heard of a case where you include a request for a stay in your argument on the merits to the trial judge, but I suppose it’s possible - would depend on the dynamics of the particular case and the practice in that particular court.
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.
New Jersey was a different beast entirely. Mainly becuase the NJ Supreme Court ruled on the merits in denying the stay (which was really weird also). If Sotomayor refers the stay to the entire Court, and they explain that they’ve denied the stay becuase they voted and Shelby was right, then it would be game over. But they won’t do that. Most likely, they’ll grant or deny without comment. The Tenth Circuit motions panel didn’t indicate support for the decision (nor would it matter since they won’t be the merits panel). This is substantially more similar to the Prop 8 case, where there was a stay.
I’m no expert on marriage law or even federal procedure, I’m just saying that I can’t see how (if the district court is reversed) the marriages aren’t void. And I’d be curious to know why others would think otherwise.
But it’s the state of Utah which is applying for a stay, and therefore the State must show irreparable prejudice to the State, correct? What is the prejudice to the State if private citizens get married and ten later their marriages are declared invalid?
The gay and lesbian community has some sophisticated leaders. I think we can assume that all those couples rushing to get married know the case is under appeal and could be overturned. The example I California is public knowledge. If those couples are willing to take the risk that their marriages may be declare void, surely that’s their personal choose. How does it harm the State? And if it doesn’t harm the state, doesn’t that knock out the case for an emergency stay?
Maybe because people are relying on the state and it’s not a matter of facts that are knowable to the parties (like whether they are divorced) but a question of whether a judge’s change to the law will continue to be the law. It IS the law right now, it just might be changed later.