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Since 2008 – Progress Through Politics

Court Watch: Utah Marriage Equality – UPDATE: 10th Circuit Denies Stay

On Friday afternoon, District Court Judge Robert Shelby released his ruling stating that the Utah ban on same-sex marriage was unconstitutional.

The response was … people getting married!!

And for the State of Utah to ask for a stay, for the governor to tell the counties to wait before complying with federal law (!), and for the County of Salt Lake to promise to issue marriage licenses until the court tells them to stop.

Today at 8am MST, in Salt Lake City, the county clerks office will re-open and more marriages will take place.

At 9am MST, Judge Shelby will hear arguments on whether or not to grant a stay heard arguments and denied the stay.

UPDATE: Tuesday evening 10th Circuit Court of Appeals Denies Utah’s Stay Request

 The state can ask the Circuit Justice for the Tenth Circuit Court of Appeals to review an application for a stay. The Circuit Justice there is Justice Sotomayor. She can decide to grant or deny a stay on her own, or ask the full Court to decide.

We continue to wait and watch … one step closer.

TV news links: KUTV 2, Fox13Now

The ruling and the status of the appeals (newest first):

Tuesday: The 10th Circuit Court of Appeals, based in Denver, has received the state’s request for a stay, asked for and received the plaintiff’s response, and will consider the request and issue a ruling. In the meantime, same-sex marriage licenses continue to be issued (one estimate suggested 300 marriages have already taken place. Some county clerk offices are refusing to issue licenses to same-sex couples (or have closed) in defiance of the federal courts.

Monday evening Plaintiffs filed their response to the State of Utah’s request: PDF from SCOTUSblog

Monday The State of Utah asks for a stay  

State officials in Utah asked the Tenth Circuit on Monday to delay same-sex marriages in the state, arguing that a Salt Lake City judge was wrong in striking down a voter-approved ban on those marriages.  The move came after U.S. District Judge Robert J. Shelby refused to delay his own ruling.

Neither the Tenth Circuit nor the Supreme Court has ruled on a state’s power to forbid same-sex marriages, the state pointed out, so “Utah should be allowed to enforce its democratically chosen definition of marriage until the appropriate appellate court of last resort has declared otherwise.”

Monday District Judge Shelby denies stay

With Judge Shelby’s denial of a stay pending appeal, the state has the option to appeal the denial to the Tenth Circuit, where they could grant or deny the stay, despite their earlier denial of the temporary one. (The Tenth Circuit denied the request “without prejudice” to the state re-filing the motion and following proper procedures.) The next step after the appeals court would be a request from the losing party to the Circuit Justice for the Tenth Circuit, who takes up various applications related to cases in that appeals court. The Circuit Justice for the Tenth Circuit is Justice Sonia Sotomayor. She could decide to grant or deny a stay on her own, or ask the full Supreme Court to decide.

Sunday 10th Circuit declines to stay Utah same-sex marriages before district court hearing Monday

The Tenth Circuit has just declined to grant a temporary stay (requested by the state) before [Monday’s] hearing. The appeals court said that they must deny the stay because the state’s request doesn’t address the factors for a stay. They wrote that the state can re-file, if the filing complies with the Federal Rules of Appellate Procedure and the district court’s local rules.[…]

Along with the Tenth Circuit’s order, the plaintiffs have just filed their opposition to a stay in district court.

The appeal to the ruling has officially been filed and is docketed as 13-4178, Kitchen v. Herbert. Both sides have filed motions.

Saturday, the Salt Lake County DA, Sam Gill said:

“If, and when, there is a Stay of the current order then we will inform the clerk to stop issuing licenses. The issue is left to the legal counsel of each county to respond to the ruling.”

Saturday, Gov. Herbert issued a letter to county clerks:

Utah Gov. Gary Herbert wrote a letter and sent it out to county clerks across Utah Saturday, as many of them stated Friday they were awaiting instruction from state officials about how to proceed after a federal judge struck down Utah’s ban on same-sex marriage.

In the letter, Herbert said state officials are working to appeal the decision and secure a stay on same-sex marriage

Friday Evening Utah Files Request for Stay (PDF from SCOTUSblog)

Friday, the state requested a stay and the judge refused to listen to oral arguments and asked both sides to submit briefs for the hearing Monday

Friday Judge Shelby’s Ruling

“The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity,” U.S. District Judge Robert J. Shelby ruled in a fifty-three-page opinion.  He was the second federal judge to nullify a ban imposed by a state’s voters at the ballot box; the first such ruling nullified California’s “Proposition 8″ – a ruling that the Supreme Court left intact in June but without a direct ruling on it.

~~~

The 10th Circuit will hear the expected appeal. The current composition of the court:

Circuit Judges:

– George H. W. Bush appointees – 1

– Clinton appointees – 2 (including chief judge)

– George W. Bush appointees – 4

– Obama appointees – 3

(2 vacancies. Obama has nominated, not confirmed yet)

Senior Judges:

– Lyndon B. Johnson appointees – 1

– Carter appointees – 2

– Reagan appointees – 5

– Clinton appointees – 1

– G.W. Bush appointees -1

Currently like 9 Democratic appointees, 11 Republican appointees. It will be 11 and 11 when President Obama’s nominees are confirmed.

Justice Sonia Sotomayor is the Supreme Court Justice tasked with reviewing emergency motions from the 10th Circuit.

~~

(WARNING: I am not an attorney, I am a simple news aggregator. Please feel free to point out my errors and omissions and I will include them in the diary)


74 comments

  1. How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage Equality

    Friday’s decision by a federal judge overturning Utah’s constitutional ban on same-sex marriage (Amendment 3) represents the first major legal victory for marriage equality since the U.S. Supreme Court overturned the federal Defense of Marriage Act (DOMA). In that case, United States v. Windsor, the Court only addressed the question of federal recognition of marriage, and though procedural rulings in cases in other state have cited it, the Utah decision is the first time Windsor was cited to completely overturn a state law banning same-sex marriage. In an extremely readable opinion, Judge Robert Shelby – an Obama appointee whose nomination was supported by both Sens. Orrin Hatch (R-UT) and Mike Lee (R-UT) – explained not only why Windsor applied, but why the state’s arguments against same-sex marriage fell flat.

  2. Utah Same-sex couples seeking marriage to stay overnight outside clerk’s office

    SALT LAKE CITY – Eleven hours before the office opens and 12 hours before a scheduled hearing on a motion that would halt gay marriages in Utah, same-sex couples seeking marriage licenses were already lining up at the Salt Lake County Clerk’s Office.

    Hundreds of same-sex couples rushed to county clerk’s offices this weekend after a federal judge overturned Utah’s ban on same-sex marriage.

    Michael Aaron, publisher of Q Salt Lake-an LGBT magazine, said, “It’s very possible that we may actually see 1,000 couples married during this short time.”

    Equality Utah said on a Facebook post that they had confirmed that Salt Lake and Weber county clerks would be open and ready to marry people “exactly at 8am”. The post advised couples to download and fill out their applications online ahead of time to expedite the process.

  3. jlms qkw

    for its speed

    Jim Dalrymple II ‏@jimmycdii 24s

    The line for marriages this morning in Salt Lake City wraps around two floors #gaymarriage #marriageequality pic.twitter.com/VmOeUgmsnC

  4. jlms qkw

    for Ogden & St. George, are open.

    David DeMille ‏@SpectrumDeMille 19m

    Make that two dozen #washco #gaymarriage #utpol pic.twitter.com/D16BluY2sV

    Retweeted by Brooke Adams

  5. jlms qkw

    seems to be a yes:

    Eric Ethington ‏@EricEthington 4m

    NEW: Morgan County is issuing licenses to same-sex couples. #utpol #gaymarriage

  6. jlms qkw

    in equal marriage.  this has byu, provo, and jason chaffetz. also mia love.  

    Donald W. Meyers ‏@donaldwmeyers 18m

    .@utahcountygov not issuing same-sex marriage licenses, turned away 1 couple. @sltrib

  7. jlms qkw

    looks confused:

    Chandler Mundy ‏@ckmundy 7m

    @BenWinslow @fox13now Cache County just told people waiting in line the clerks office will not open today

    Details

  8. jlms qkw

    somewhere north, i think.

    Matt Canham ‏@mattcanham 1m

    Box Elder has had no gay couples attempt to get a license but Clerk wouldn’t give if they tried. Two sheriffs stand near doors. #utpol

    Jenn ‏@jlms_qkw 10s

    @mattcanham Box Elder Co brought their freakin’ Sheriffs to stop equal marriage? !!!!!!!!

  9. jlms qkw

    just denied an emergency stay, for the second time in two days i think.  but i need a better legal person than myself to explain that one.

    everyone is pausing while the hearing at federal court is happening.  

  10. jlms qkw

    Hunter Schwarz ‏@hunterschwarz 40s

    Which counties were & were not issuing marriage licenses this a.m. before the 10th Circuit denied Utah’s stay #utpol pic.twitter.com/jFuhPclJJK

    but it’s not complete.  it’s a moving target.  

  11. HappyinVT

    but I’ll say it again: how hateful do you have to be to want to deny these obviously happy people the right to marry the person they love?

  12. HappyinVT

    CINCINNATI (AP) – A federal judge has declared in a ruling that applies only to death certificates that Ohio’s ban on gay marriage is unconstitutional.

    In his decision Monday, Judge Timothy Black orders state officials to recognize such unions on death certificates. Although his ruling applies narrowly, his statements about Ohio’s gay-marriage ban are sweeping and expected to incite further litigation challenging the law.

    In his lengthy decision, the Cincinnati-based judge says that “once you get married lawfully in one state, another state cannot summarily take your marriage away.”

    He says the U.S. Constitution recognizes the right to remain married as a fundamental liberty. http://talkingpointsmemo.com/n…  

  13. Tenth Circuit has just told plaintiffs to file their opposition brief by 5pm.

    I am not sure when a ruling is expected from them. I would guess the clerks offices would be open tomorrow.

  14. jlms qkw

    Seth Anderson ‏@jsethanderson 1m

    Suit is being filed against the Utah County Clerk for refusing to issue marriage licenses. pic.twitter.com/4o2dapM2QS

    lawyers are traveling to non-complying counties, also.  from Equality Utah, i think.  

    the 10th circuit will probably announce tonight (after 5pm) or early tomorrow about the next request for a stay.  

  15. jlms qkw

    Jim Dalrymple II ‏@jimmycdii 16m

    Salt Lake County clerk’s update: 312 marriages today, mostly same sex couples. Previous record for most marriages in a day was 82 #utah

  16. jlms qkw

    Ben Winslow ‏@BenWinslow 8m

    Plaintiff’s lawyer Peggy Tomsic tells me briefings/arguments in #Amendment3 appeal likely by March/April. @fox13now #utpol #LGBT #Utah

    Expand

    Jenn ‏@jlms_qkw 2m

    @BenWinslow @fox13now to which court?

    Expand

    Ben Winslow ‏@BenWinslow 1m

    @jlms_qkw The 10th Circuit.

    Expand

    so besides the emergency stay the 10th circuit is hearing like right now, there is an appeal based on merits, but it won’t be heard for 3+ months?  

  17. jlms qkw

    to open their doors in the morning and issue licenses to all applicants.

    i need to get into the shower and pick out a dress!  

  18. Ian Millhiser is pretty sure that the very conservative 10th Circuit will issue the stay. Even the more liberal 9th Circuit issued a stay when Prop 8 got to the federal courts.

    His take on SCOTUS: 5 Ways The Utah Marriage Equality Case Could Play Out Once It Reaches The Supreme Court

    Here are 5 different ways that the Supreme Court could handle this issue, arranged from the most expansive possible ruling for gay rights to the most destructive to equality:

    – Marriage Equality For All, Plus Heightened Constitutional Scrutiny of All Anti-Gay Laws

    – Marriage Equality For All, Punt On Heightened Scrutiny

    – Punt On Utah, But Anti-Gay States Have To Recognize Other States’ Marriages

    – Punt On Utah, But Strike State Constitutional Bans On Marriage Equality

    – A Loss: Finally, it is important to remember that this Supreme Court is very conservative – so there is no guarantee that it will continue to hand down pro-gay decisions. Indeed, if a conservative justice replaces one of the five members of the Court who typically support gay rights, all the progress LGBT Americans have achieved in the Supreme Court could be rolled back in a single opinion.

  19. Our intrepid Moose Reporter jlms qkw sends links and stories which I will share with all y’alls:

    Sltrib.com Here’s every story we’ve done on the same-sex marriage ruling

    She recommends the Rachel Maddow Show segment: Utah couple’s case unlocks same sex marriage

    She was at the “Restore Our Humanity” rally last night and reports this:

    at the event, i met an older female couple, and people around us asked who just got married – they raised their hands. they actually flew to another state last week to get married and returned home thursday, to all the breaking news on friday. then in the parking garage (of all places) i met a young male couple who went the distance: they were in line in salt lake county and missed the cutoff last friday. they drove to ogden based on rumors the clerk there in weber county would open saturday (which didn’t happen after all). they got in line at 2am monday morning (sunday night) and were the 75th couple to get a license when the doors opened at 8am.

    And to no ones surprise, the grossly incompetent Utah Attorney General’s office NOW tells the counties that they broke the law by not opening/issuing licenses:

    A spokesman for the Utah Attorney General’s Office says that while his office isn’t advising county clerks at this time, the law now provides that they must issue marriage licenses to same-sex couples.

    U.S. District Judge Robert J. Shelby “has put out his ruling that anyone who denies a marriage license is in contempt of the court and in contempt of the law,” said Ryan Bruckman on Tuesday. “According to that, everyone should be [issuing licenses].”

    Meanwhile, the Cache County Clerk’s office on Tuesday began issuing marriage licenses to same-sex couples.

    Two other counties are still waiting for “clarification”.

    Thanks, Jenn!!!

  20. @BenWinslow: URGENT: #Utah AG’s Office confirms to @fox13now it will ask U.S. Supreme Court Justice Sotomayor for an emergency stay. #Amendment3 #utpol

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