A void marriage is a void marriage, regardless of whether the facts are knowable, I think. But the point I’m trying to make (and maybe it’s overly technical) is that, on reversal, the law isn’t “changed,” the situation reverts to one in which Shelby’s opinion never happened. So, as bizarre is it seems, it’s true that Shelby’s marriage laws are currently in effect, but if he gets reversed, it’s not that the law reverts back to Utah’s laws; it’s that Shelby’s law never happened.
I think this could be right. One harm is the risk of further litigation over the status of void marriages, and I don’t know how compelling this is. I would think that the biggest harm is that the married couples would begin to do things that rely on martial status (die, for example; pay taxes; claim benefits). To the extent that the government has any interest at all in regulating families in this manner, the longer the appeal process takes the greater risk of an significant harm if there’s a reversal (although, that’s always true in the context of a stay, I suppose).
But there’s a difference between facts and law. And people are often allowed to rely on what those in the government tell them the law is, while they are not allowed to hide (or not know) facts and just go with that.
Trying to void the marriages could lead to brain-melting litigation in other jurisdictions - take the case of a couple that gets married in Salt Lake City right now and then moves to Boston before the Tenth Circuit weighs in. Then the Tenth Circuit says that Judge Shelby got it wrong, Utah’s laws are fine, marriages are void ab initio. Is the couple in Massachusetts still married? What if one of them takes the opportunity to try and leave the relationship and argues that the other isn’t entitled to marital property distribution? Or if one dies intestate and their family tries to claim their estate?
Because of situations like this, although I would have ruled as Shelby did, I also would have granted a stay. But I also think that the courts, having allowed the marriages to continue, should enforce them later, even if Shelby is reversed, just on the grounds of predictability. I’m not an expert on marriage law or federal procedure in general though, and would not be surprised if my intuition was wrong.
Thanks for your comments on my question earlier. I think that you have hit on the issue at hand, and why it is difficult for lay people who aren’t in the legal profession to understand these rulings. I think most lay people read their own prejudices and ‘feelings’ into the ruling. What I was trying to allude to in my previous question was how automatic is the stay if there is no harm to the party asking for the stay. From earlier comments by other posters I gathered it was automatic. Some people I know have read into the no emergency stay position a reading that likely isn’t there since the legal side doesn’t seem to look at these issues from that perspective.
So it would appear the original judge and the appeals court didn’t find that there was enough harm to the state of Utah to grant an emergency stay. However it doesn’t convey any intent on the final resolution of the issue at hand. Reading through the appeal court ruling (reading as an Architect, not a lawyer mind you!) it appears that the motion didn’t meet the four criteria (with the first two being weighted more) so the emergency stay was denied. Nothing more than that.
From what I gather the further up the pole it goes it is much more difficult to obtain the emergency stay.
My question then now is this. Say the emergency stay is denied all the way up to the Supreme Court, for the time being, same sex marraiges are legal in Utah. But until the Appeals Court hears the appeal this case could go either way, correct? And even if they affirm the lower court, the state has an opportunity to appeal to the next level, etc. So this isn’t a slam dunk yet.
I read in the Appeals Court ruling that they are doing an expedited consideration of the appeal but it still seems we are several months away from a resolution on this right?
You’re welcome. Sorry for the typos in that post - posting on an iPhone during breaks from putting together Christmas Lego with the Cub. 
Since I’m a complete outsider, I wouldn’t hazard a guess on how long an appeal may take, but at least a few months until the hearing doesn’t seem unlikely.
I’m not sure that’s right. It’s a long-standing (if somewhat unfair) principle that you can’t make an estoppel claim against the government because you relied on their (erroneous) interpretation of the law. “Men must turn square corners” and all that.
That’s correct. And we don’t really know how they analyzed the four factors since the opinions are so brief (so they may have relied on another factor than “enough harm to Utah.”
As a practical matter, yes. Although, curiously, as I recall, the standard for an application for a stay in the Supreme Court is a “reasonable probability” that they would grant cert and a “fair prospect” of a reversal. So I would actually say that the standard is lower; but realistically, they tend not to grant stays.
That’s basically right. Curiously, although I’m a little fuzzy on the mandate rule, since there is no stay, if the Tenth Circuit reverses and then the plaintiffs appeal, I’m not sure what the status of same-sex marriage becomes. Shelby has no jurisdiction in the case until (and unless) it’s returned to him, so he can’t stay the judgment any more. I don’t think a Tenth Circuit reversal would take effect until the mandate issued, and if it was appealed it wouldn’t issue.
But it’s certainly not a slam dunk and we’re a very long way from a resolution. First, a three-judge panel of the Tenth Circuit will hear the case. After they decide, the losing party (either the state or the plaintiffs) can petition for rehearing en banc. That requires a majority vote of the active judges of the circuit. If that’s granted (it usually isn’t, but this is a big case), then they’ll go before the entire Circuit. Then when they hand down an opinion, the losing party can petition for a writ of certioari to the Supreme Court. Which may or may not be granted. And, if granted, then there will be argument, and so on and so forth. I would think (absent something drastic) it would be at least a year before a final resolution.
They will probably argue it before the 10th in the Spring.
Or 5 years, as that’s how long it took Prop 8 to make it from the ballots in 2008 to final judgement in the SCOTUS in June of this year.
Personally, while I may agree with your reasoning Falchion about the merits of the stay, I think it is also quite clever of the gay marriage side to get as many people married as possible. I don’t believe for a second that judges are not affected by their personal views and the public, so seeing thousands of happily married couples may just sway the courts to uphold the marriages whether or not they are later deemed voided from the beginning. In that case, sure, the marriages never happened and sucks to be you, but I think most rational people see the tide having already turned and that gay marriage will be a reality and they will not fight it.
It sucks to be the couples in the middle, but I don’t think they are entirely unaware of their political pawn status. The ones getting married are doing so precisely because politics have been against them for so long so I think they are fine using their status to help push things in the right directions. If that means making a big deal about annulled marriages, if it means arguing (even insincerely) that the law doesn’t have the right to harm them by taking away their rights, then they will do so and I will support that.
Many people see gay rights as the big civil rights issue of our generation so we don’t mind if we have to break laws or argue badly to get what we want. The goal is full equality for gays and if we have to make unsupportable claims that the law should bend to prevailing public winds and keep these illegal marriages legal, then that’s what we’ll do
Or rather, they’re not pawns because they’re trying to assert their rights and advocate for their side.
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.
On the flip side, there is simply no beneficial reason for the decree of one judge to become law of the land when it is certain that those higher than him will chime in with their opinions that will likely be different, at least at the Circuit level.
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.
I don’t have too much of a problem with this paragraph except the bolded part. People who argue against same-sex marriage always forget the 14th Amendment and the Equal Protection Clause. You may not believe its valid, but enough people do that its often cited when rights expansion issues are argued. Plus, in this case the judge directly cites the Windsor case as precedent, so claiming that the federal government is making a power grab is incorrect
Here’s where you lose most objective people. You claim it is “certain” that the higher ups will rule against it, the logic being that if they eventually do, then the lower court should have granted a stay. Consider for a second that Shelby and those of the 10th District Court does not believe that they will be overruled. Then would you support their denial of the stay? All you can really do in that case is claim you don’t believe them, that they are insincere, or go back to the crutch of “activist” judges when by all rational logic there’s no reason why any higher court will uphold the ban. So in that case, if you don’t believe Shelby was sincere in his beliefs, all you can really claim is that he’s activist (unprovable) or incorrect (going against the Windsor case precedent). I see no reason why a stay should be granted, this thing will be won by the pro-gay marriage side
Without taking a position on the eventual outcome of the case, two quibbles: first, we don’t really know if the motions panel of the 10th Circuit thinks it will be reversed on the merits, all we know is that they weren’t convinced to grant a stay. But likelihood of success is only one factor.
And secondly, Shelby relied heavily on the Windsor dissent’s interpretation of Windsor. Right or wrong, he hardly faithfully applied Windsor’s precedent. In fact, Shelby’s treatment of Windsor is one of the least compelling parts of the opinion and appeared calculated to simply mock Scalia. (To his credit, he tackles Baker head on. I’m of the opinion that the only appropriate thing for a court to do is to apply it as controlling and let the Supreme Court change it, but many courts (Perry, for example) simply ignore it as if pretending it’s not there makes it less binding).
In California, a major factor in the eventual decision was that the State declined to offer a defense, leading to the SC “no standing” decision. In Utah, it seems to be a case of simple incompetence on the part of the Attorney General. What’s next, “sorry, your honor…the dog ate my brief”?
I’m not gay, and I don’t live in Utah, so I have no real stake in this…but I think it’s abundantly clear that the tide has turned on this subject. I have to believe that the rulings by Judge Shelby and the 10th Circuit are an admission of this in the minds of the judges. The law may or may not favor gay marriage in Utah today, but I think “the will of the people” certainly does, and I think that’s what will decide this issue.
And on the subject of potentially invalidated marriages, how does the year-end factor into things? There are a whole lot of people who are going to file joint tax returns based on the timing of this decision. Surely they could be forced to file amended returns if their marriages are invalidated, but doesn’t that just add to the list of “stuff that’s going to be a royal pain in the ass to deal with” if the ruling is overturned?
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
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?
And I’m totally fine with Shelby’s application of Windsor’s dissent. I find it compelling unlike you because I think Shelby did in fact apply it faithfully, it just wanted the outcome that Scalia originally intended. Once can use a warning and come to a different conclusion without contradicting the warning, that’s what Shelby did. To me, that’s the best part of the interpretation 
It is “certain” that higher ups will review it and likely, at least at the 10th Circuit level, that it will be reversed. Further, I don’t think that Kennedy is onboard with such a sweeping ruling. In Windsor, he devoted far too much dicta to the traditional role of states in defining marriage to flip that opinion this soon, at least in my mind.
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. For the time being, he is bound by Baker as precedent and that makes his ruling incorrect on its face. Scalia’s grumblings in dissent don’t shed light on the majority opinion.
Psst. It isn’t, and he didn’t. This nonsense that the “one man, one woman” standard is thousands of years old is ridiculous – it’s not even the standard in almost a third of the world today, and “one man, many women” has been the norm for much of history. As for one judge changing this…you may have noticed this happening in the rest of the country and much of the developed world, recently?
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.
This is hilarious.