Ravell Call, Deseret News
After federal district court Judge Robert Shelby's dramatic Dec. 20 decision overturning Utah's gay marriage prohibition, same-sex marriages remain legal in the state heading into Christmas. Yesterday, Shelby refused to stay his decision pending appeal, and attention shifted to the 10th Circuit Court of Appeals, which will now weigh the state’s request for a stay.
Gov. Gary Herbert had urged Shelby to issue a temporary stay on his decision, arguing in a statement over the weekend that the decision "created a chaotic situation" in the state.
But some, including University of Utah law professor Clifford Rosky, are skeptical the stay will be granted, even at the 10th Circuit. A stay typically is granted only if there is a high probability of success for the appeal or irreversible damage to the state in the interval, he explained.
"There are only 3,000 same-sex couples in Utah," Rosky said, "and 1,000 of those have already gotten married this week. If a few hundred more get married now, what difference will it make?"
Rosky, who also is chair of the board for Equality Utah, an LGBT equality group, also noted the state's argument that, if it succeeds on appeal, the marriages contracted during the interval will be nullified. Rosky, however, said he believes they would stand, because they were legally contracted at the time they were made.
During a one-month period in 2004, San Francisco Mayor Gavin Newsom ordered clerks to issue marriage licenses to same-sex couples. The ensuing 3,995 same-sex marriages were later invalidated by the California Supreme Court when it determined Newsom lacked authority to authorize those licenses. The cases are not entirely parallel since the Utah case involves a federal judge rather than a local elected official, and Newsom's actions were overturned because he lacked the legal authority at the time. Whether the Utah marriages will stand if Shelby's decision is overturned is still an open question.
Observers on both sides are looking past the near-term decisions to the big picture, including likely Supreme Court outcomes. Utah’s case before the 10th Circuit Court of Appeals now joins a similar case from Nevada currently before the 9th Circuit, and on Tuesday a federal judge in Ohio raised the ante further, holding that the Buckeye state was obliged to recognize as married on its death certificate a couple married in Maryland shortly before one partner died.
One thing seems clear: With three different Circuit Courts of Appeal now poised to decide essentially the same issue around the same time, the Supreme Court cannot be far behind.
Stigma and animus
If past is prologue, the groundwork for Judge Shelby’s decision was laid by five members of the Supreme Court in June 2013 in Windsor v. U.S., which struck down the parts of the federal Defense of Marriage Act that defined marriage for federal purposes.
On the surface, Supreme Court Justice Anthony Kennedy’s decision in Windsor sought to reassure its audience that it was deferring to the states by barring the federal government out of the definition of marriage. But Kennedy’s decision did not stop with defending state authority to define marriage. In fact, as Justice Antonin Scalia argued in dissent, it may have undermined state authority.
Kennedy's decision ranged widely, critiquing the motivations that drove Congress and President Clinton to pass and sign the law. The law’s creators, Kennedy wrote, evinced a “bare desire to harm,” sought “to disparage and to injure,” aimed to “demean,” “impose ... a stigma,” deny people “equal dignity” and “humiliat(e)” the children of gay couples.
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