10th Circuit sets 'expedited' schedule for appeal of Amendment 3

Appellate attorney predicts resolution could be reached by spring

Return To Article
Add a comment
  • Martha Newman Utah, UT
    Jan. 3, 2014 9:31 p.m.

    The issue really comes down to the 10th Amendment, not the 14th. Saying marriage is a fundamental right is not enough to overturn state definitions of marriage. Why because the SCOTUS ruled this past summer that states define marriage. Now it can be hollered all day long that banning same sex marriage has to be done on the basis of legitimate reason, there is one. The voters accepted the state's definition of marriage. How does the SCOTUS defend Heller (gun case) that says you can't ban an entire class of guns because people like to use them (handguns) while saying you can ban an entire class of guns (sawed off shotguns). The SCOTUS is setting themselves as the definer of marriage while saying that is the state's duty. Sexual Orientation is not a basis to ban marriage, really, what about pedophiles (not comparing gays to pedophiles). Sexual orientation is allowed if it is merely consenting adults? So if you are sexually attracted to your sister and you are an adult, marry away? Either states define marriage or they don't, period.

  • Martha Newman Utah, UT
    Jan. 3, 2014 8:52 p.m.


    The constitution doesn't apply to everyone. Ever hear of regulating who can own guns?

  • Rikitikitavi Cardston, Alberta
    Jan. 1, 2014 6:10 p.m.

    do you even know the meaning of the word "disenfranchise?" I think not.

  • Bob K porIland, OR
    Dec. 31, 2013 4:18 p.m.

    "No one is prohibiting gays and lesbians from making vows to each other or living together. If the issue is tax treatment, inheritance, hospital visitation rights, etc. that can easily be remedied through civil unions."
    -- NOT true: Federal tax and benefits, including Military benefits, and Social Security, apply only to marriage.

    "The core issue is the desire by homosexuals to feel accepted and validated by society, even if this must be accomplished by legal force."
    -- No, your crystal ball is "off", here, on reading their minds. Most would take the rights and let you keep your judgement. No American citizen ought need to force equal rights.

    "There are very good reasons why we "discriminate" against those unions and it has nothing to do with our "hate" of parents, children, brothers, or sisters."
    -- You do not understand that treating other citizens who hurt no one as if they were as damaging as bigamists, incestuous partners, etc is exactly the same as "hate", in effect.

    -- I have read in DN comments that some mormons feel the rest of us "hate" you. In fact, we may hate some of your actions, like Prop 8, but we accept your rights as Americans.

  • get her done Bountiful, UT
    Dec. 31, 2013 1:47 p.m.

    Appeal total wast of time and money. Why hate people this much. We should come out of the bubble and see what is going on in the real world. Civil rights for everyone.

  • Willem Los Angeles, CA
    Dec. 31, 2013 1:36 p.m.

    The Court is squarely headed toward an even broader ruling based on Windsor. “A majority of the Supreme Court said eleven times in Windsor that gay people and their relationships have the same dignity as straight couples,” Kaplan said. “According to the dictionary, the word ‘dignity’ means being worthy of honor or respect. Now that the Supreme Court has acknowledged that gay couples are equally worthy of honor and respect, all the arguments that have or can be made against allowing them to marry ultimately seem pretty silly.” And, she added, “One thing that really changes hearts and minds on this issue is seeing the altogether boring reality of married gay couples’ lives.”

  • bill in af American Fork, UT
    Dec. 31, 2013 1:05 p.m.

    The 14th amendment is consistently brought up to support gay marriage under equal protection. Let me get this right; if a Satan worshiping cult that practices human sacrifice wants to practice their beliefs, then they should also be protected under the same reasoning? Of course they will not receive the same protection because their practice is considered an evil in society. The same should be viewed for same sex marriage, but society is quickly shifting away from recognizing sin as sin and replacing sin as an acceptable behavior. Our Constitution was designed to protect our "natural rights". There is nothing "natural" about same sex marriage.

  • Henry Drummond San Jose, CA
    Dec. 31, 2013 12:50 p.m.

    I have a funny feeling that a two million dollar argument isn't going to be anymore sophisticated than what many people on this comment board are serving up for free. It will have some nifty Latin phrases however, as well as references to a lot of Supreme Court decisions with even more nifty Latin phrases in them - but other than that I don't see what the big money buys you.

    I also have a funny feeling that the ruling in this case has already been written. Its called the "U. S. v Windsor" ruling that threw out the "Defense of Marriage Act." Whether you make a two million dollar argument or two-bit one, I think Justice Kennedy is going to say, "By golly, I think this ruling should apply to the states as well as to the federal government."

    In other words you are going to lose, but if you want to look good doing it, by all means spend the two million.

  • CHS 85 Sandy, UT
    Dec. 31, 2013 12:47 p.m.

    Fertility tests should be required before issuing marriage licenses. If you can't breed, what good are you to society?

  • Cats Somewhere in Time, UT
    Dec. 31, 2013 11:48 a.m.

    All pro-marriage, pro-family, etc. organizations are jumping on board with the State of Utah as we speak (write?). They will offer all kinds of legal, financial, research and other resources to the State.

    I can't believe we've come to this in our society. Polygamy is next. Then any consenting adults including siblings, cousins or even group marriages between several men, several women altogether. After all the only thing that matters is consenting adults and the fact that they want to have emotional satisfaction along with sexual enjoyment. There really isn't other reason for marriage, is there? How about people and animals?

    Actually, there is no such thing as gay marriage. Marriage is a union between a man and a woman. We can pass all the laws we want to, pretend or live in denial. It won't change anything. A homosexual relationship will never be a marriage--worlds without end no matter how many laws we pass or how much we pretend.

  • Darrel Eagle Mountain, UT
    Dec. 31, 2013 11:21 a.m.

    Initially James Madison was opposed to the Bill of Rights. He was afraid that enumerating certain rights in the Constitution would limit the rights of the People.

    The people obtain their natural rights simply by being born. We then empower the government (and in the process lose some rights) to protect our rights. We empower this government via the Constitution. The Constitution does not grant rights, it protects them. That is why the Ninth Amendment is so vital. It simply states that there are other rights that are not enumerated in this Constitution, and the act of enumeration does not limit those rights.

    Who would contend there is no right to marry in this society. Who does not look upon their child and want them to happy, and have a partner that makes them happy? Who wants their marriage put up to a vote? If your marriage was called up for a vote and it failed, would you be seeking protection from the courts?

  • CHS 85 Sandy, UT
    Dec. 31, 2013 9:57 a.m.

    I'm just sad that if this wins, I'll be forced to divorce my wife since we can't procreate. That seems to be the threshold to meet and the hill to die on.

  • Saguaro Scottsdale, AZ
    Dec. 31, 2013 9:42 a.m.

    An interesting profile in the New York Times tells me more about this "activist" judge than I have learned from reading his local paper. Judge Shelby "had been a combat engineer in the Persian Gulf conflict and was, according to state voter records, a registered Republican. Senator Orrin G. Hatch, a seven-term Utah Republican, recommended him for a federal judgeship, calling him an experienced lawyer “with an unwavering commitment to the law.” Senator Mike Lee, a Tea Party Republican, said that Mr. Shelby was “pre-eminently qualified” and predicted he would be an outstanding judge."

  • Happy Valley Heretic Orem, UT
    Dec. 31, 2013 9:16 a.m.

    My2cents; said: "The Supreme court does not have the right to challenge a State Constitution that was ratified and accepted by the majority of states in 1896. The Supreme court cannot change the constitutions, they must comply with the constitution as they are written."

    That's too funny, I don't think they read an amendment added 9 years ago that changed the original wording to include animus towards a minority?

  • Happy Valley Heretic Orem, UT
    Dec. 31, 2013 9:15 a.m.

    Reflectere said: "Show me where in the constitution it claims the government has authority over marriage or that marriage is an inalienable human right? Maintaining the religious definition of a religiously ordained institution is not."

    Real easy- When the government gives over 1,500 benefits to people married with a license provided by the government, I'd say the government is heavily involved.

    The Government is not a theocracy unfortunately so maintaining a religious definition of a religiously ordained institution would be against the constitution or you need to get together with your fellow religionists and decide what our national religion is or should be and change the constitution to make our country more to your liking, like Iran. I just hope the other christians will consider the Mormon church Christian, since majority rules is something you guys seem to like.

  • LDS Liberal Farmington, UT
    Dec. 31, 2013 8:18 a.m.

    If they base their arguement that the ability to "pro-create" is a requirement for marriage [like they did last time] then why waste another penny?

  • Two For Flinching Salt Lake City, UT
    Dec. 31, 2013 4:16 a.m.

    @ BYUCamFam

    What you're advocating is to apply the "separate but equal" principle to marriage. It's not going to happen.

    As for discriminating against pedophilia and incestuous relationships; we do that because a child cannot give legal consent and they both bring about a significantly increased risk of harm through emotional trauma or genetic issues with offspring. SSM does not present issues like that.

  • My2Cents Taylorsville, UT
    Dec. 31, 2013 2:14 a.m.

    What Utah has to do is enjoin other states with shared support to challenge the supreme courts methodology that is not legal or consistent with the conditions established rules to make decisions. We should not be trying to defend our rightful state Constitution but to challenge the Supreme Courts ruling.

    The Supreme court does not have the right to challenge a State Constitution that was ratified and accepted by the majority of states in 1896. The Supreme court cannot change the constitutions, they must comply with the constitution as they are written.

    Reyes is not qualified to represent the Constitution, only the legislators of several states can challenges the supreme courts with it unconstitutional rulings trying to change the constitutions they are sworn to obey.

  • ReadMineFirst Ft. Collins, CO
    Dec. 31, 2013 1:39 a.m.

    @ Ute Alumni

    Your comment rings true with me. Who came up with the $2 million amount anyway? I am sure that there are many folks in this country that would be more than willing to donate to support your AG. Set up a website, Utah! We are here to show our support with our $$$.

  • Tai H. Herriman, UT
    Dec. 31, 2013 1:21 a.m.

    I'm surprised to hear these comments about the 14th Amendment. Sexual orientation is defined as a "rational basis" scrutiny classification under the doctrine of equal protection. Utah's burden is simply to "prove both prongs".

    To change sexual orientation to a "strict" tier classification would lawfully permit a self-identified gay man to shower in a girls locker room, and a sister on birth control to marry her sterile brother. To change sexual orientation to a "moderate" or "medium" tier classification would lawfully permit identical twin men to marry each other, and thereupon instruct their children that such conduct is moral.

    The only issue that pertains to Judge Shelby's ruling and Utah's subsequent appeal is whether or not Utah has a legitimate claim to argue the issue in its own boundaries. That's it. Morality, equity, fairness, justice, Robin Hood, Brotherhood, and colors of green and gray are not relevant to "legitimate interest". And thus it is a State issue, and not an issue that the Federal Government can broadly, (and perhaps infinitely) define.

  • A Quaker Brooklyn, NY
    Dec. 30, 2013 11:37 p.m.

    May justice prevail.

    May the good Lord smile his mercy on the State of Utah and may His Light ease every heart and soothe every brow. May each of His children, whether they believe in Him or not, find a life of Peace, Integrity and Community and experience the love and joy which is the universal gift of that Light. May Mankind learn to overlook the differences between us and instead see that of God in every soul and every heart, that Light that God put there Himself when He created us, male and female, in His own image. May each soul know that they are loved and that His love is multiplied in every loving relationship. And, may we follow His commandment to love one another, whether we do so out of religious belief, or the simple decency of the human spirit.

    I will hold Utah, our Nation, and its Judges in the Light. Peace be unto you.

  • DavidNL Holladay, UT
    Dec. 30, 2013 11:37 p.m.

    Do we really require a multi-million dollar law suit to feel ok about granting a fundamental right to a small segment of the population? The train has left the station, folks... it's time to "disagree and commit" and turn our attention -- and resources -- to much more important issues like air pollution, education, infrastructure and community building.

  • Roland Kayser Cottonwood Heights, UT
    Dec. 30, 2013 10:22 p.m.

    The Supreme Court has ruled on several occasions that marriage is a fundamental right of citizenship. In the DOMA case, the court ruled that while states have the right to regulate marriage, their regulations must be in accord with the U.S. constitution. In this same case they found that part of DOMA violated the civil rights of gay and lesbian citizens. That decision was the basis of the recent ruling by Judge Shelby.

    The most important factor in determining when to issue a stay is if, in the court's opinion, the appeal is likely to prevail. The fact that stays have been denied on three occasions now means that the court doesn't think that Utah has a very good case.

    Dec. 30, 2013 9:54 p.m.

    No one is prohibiting gays and lesbians from making vows to each other or living together. If the issue is tax treatment, inheritance, hospital visitation rights, etc. that can easily be remedied through civil unions.

    The core issue in gay marriage is not about "equal rights" as proposed civil union legislation that would grant the same technical relationship for legal purposes is opposed by most gays and lesbians.

    The core issue is the desire by homosexuals to feel accepted and validated by society, even if this must be accomplished by legal force. Not all unions are treated "equally" by the government, even if they involve consenting adults (see laws regarding bigamy, adult parents marrying adult children, adult brothers marrying adult sisters, etc.) There are very good reasons why we "discriminate" against those unions and it has nothing to do with our "hate" of parents, children, brothers, or sisters.

  • atl134 Salt Lake City, UT
    Dec. 30, 2013 9:48 p.m.

    Liberalism is a cancer? You're the one talking about how conservatives may end up wanting to secede. Talk about destroying the nation...

  • LRB NY, NY
    Dec. 30, 2013 9:28 p.m.

    SoCalChris: the 14th Amendment says that NO citizen (that includes gays and lesbians) shall be denied equal protection under the law. If Utah disenfranchises a group exclusively because they are different they have been denied equal protection. You are welcome to disapprove of my lifestyle. You may not marginalized me because of it. When Utah PETITIONED to become a state it agreed to uphold the constitution. Nothing has changed. The 4th amendment was there when Utah arrived. It's there now. You may not like it but you DO have to obey it. It applies to you too.

  • patriot Cedar Hills, UT
    Dec. 30, 2013 9:23 p.m.

    The US Supreme Court will strike down this activist judges ruling and restore Utah's constitution. I wish the US Supreme Court would just rule once and for all that gay marriage is NOT provided for or protected by the Constitution and avoid all these activist judges and their unconstitutional rulings. What a waste of money and time. I predict if the BIG BROTHER federal govt continues to stomp on states rights and create a socialist like political environment here in the US you will see states begin the process of secession in the next 15-20 years. I just returned from California and I spoke to relatives who live there and they are furious with Gov Jerry Brown and how he is bankrupting their state and opening the flood gates of illegal amnesty and immorality. The LA area is quickly turning into Detroit - the infrastructure is crumbling away and business is leaving for Texas and Utah and the mid west to escape the insane corporate taxes. Liberalism is a cancer.

  • SoCalChris Riverside, CA
    Dec. 30, 2013 9:02 p.m.

    "With all due respect, at various times majorities of Americans have voted to support slavery, disenfranchise women . . ."

    Slavery was abolished following the Civil War when three quarters of the states ratified the 13th Amendment. It did not become law because some enlightened judge said so.

    Women were guaranteed the right to vote with the ratification of the 19th Amendment -- 50 years or so AFTER the Equal Protection Clause in the 14th Amendment. Again, it became law only after being ratified by a super majority.

    During the 70s the Equal Rights Amendment failed to be ratified.

    No, the framers would be SHOCKED that a judge would one day usurp authority to write SSM into the Constitution.

  • LRB NY, NY
    Dec. 30, 2013 9:01 p.m.

    Reflectere is right there is no Constitutional right to marry. There is however a constitutional right to be treated equally under the law. Utah or any other state for that matter may not confer benefits (social or financial) to some citizens but deny them to others. It violates the 14th Amendment. Hence, shelby's ruling, based on Windsor.

    Furthermore I am puzzled as to why this is so surprising to Utahns whose admission to the Union was held up until the federal government was satisfied the state complied with a FEDERAL definition of marriage. Utah was not then, and is not now able to avoid federal scrutiny or judicial review. The century may be different but Federal law still trumps state. And Utah still has to be in compliance. The process of Congressional admission of states, NOT citizen referenda clearly establishes this Federal primacy

    So, Reflectere, the 14th Amendment protects me as well as you, guaranteeing me all the privileges conferred to you. Your only constitutional recourse is for the state to get out of the marriage business altogether.

  • mcdugall Murray, UT
    Dec. 30, 2013 8:40 p.m.

    @confused "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." -14 Amendment Section1. Take note, your analysis is wrong. Judge Shelby has ruled in favor of all US Citizens the right to marry. The 10th circuit in some capacity also agrees, by not issuing the stay they felt the State of Utah does not have a solid legal argument to overturn Shelby's ruling.

  • Candide Salt Lake City, UT
    Dec. 30, 2013 8:36 p.m.

    I can't wait until this goes to the Supreme Court. The court will rule the ban is unconstitutional and all the state bans will be overturned at once. Thank you Utah for pressing this issue to its ultimate conclusion. Who knew that Utah, of all the states, would be responsible for making gay marriage the law of the land in the U.S. Let freedom ring!

  • LRB NY, NY
    Dec. 30, 2013 8:15 p.m.

    Ute Alumni writes: "if you don't fight for what the majority votes for, then What is worth fighting for?". With all due respect, at various times majorities of Americans have voted to support slavery, disenfranchise women and steal the property of Native Americans. If our history teaches us anything it is that liberty and freedom are not guaranteed by majorities, but by the rule of law. indeed we have a Constitution precisely so that minorities are protected from the tyranny of the majority (hopefully you agree with that sentiment).

    A federal judge--the CONSTITUTIONALLY delegated authority to review such appeals did so. Based on a SUPREME COURT ruling he overturned a STATE LAW which must comply with the 14th amendment. This is our process. It is working as our framers intended. You are more than welcome to disagree, but not to say I is unfair. You had your day in court. And lost.

  • ute alumni SLC, UT
    Dec. 30, 2013 7:22 p.m.

    if you don't fight to uphold what the majority legally voted for, then what is worth fighting for? just because a very small minority wants to call it marriage doesn't make it so. APPEAL

  • Reflectere Utah, UT
    Dec. 30, 2013 7:16 p.m.

    Show me where in the constitution it claims the government has authority over marriage or that marriage is an inalienable human right? Marriage is not a basic right. If we were passing laws preventing same-sex individuals from romantic relationships, that's one thing. That is infringement on an inalienable human right. Maintaining the religious definition of a religiously ordained institution is not.

  • christoph Brigham City, UT
    Dec. 30, 2013 7:11 p.m.

    Utah wins 9-0 on Supreme Court; few justices want to be dictators; this is a democracy, our vote should count.

  • Conner Johnson
    Dec. 30, 2013 7:04 p.m.

    Can't think of ANYWHERE else that money could go... But hey, it's just $2 million dollars. Sounds like our new AG sure knows how to pick a winner.

  • Moderate Salt Lake City, UT
    Dec. 30, 2013 7:04 p.m.

    "The state is to file its opening brief by Jan. 27"
    Is that enough time for the state to come up with an entirely new argument?
    What they came to court with last time was junk.

  • Confused Sandy, UT
    Dec. 30, 2013 7:00 p.m.

    What part of the constitution is being violated? You say the 14th? Nope, it deals with race or origins not gay lifestyle. in fact their life style is not even a protected class by the federal government.

    Marriage is under the jurisdiction of the States, not the federal courts, that is why we have district courts and Supreme Court for each state. they determine the validity of law, then they can turn to the federal courts for is appealed.

    The problem is that Federal Courts over the past decade or so have blurred the line between what is handled in the State courts and what is handled on the federal level.

  • DontRunFromTheTruth Pleasant Grove, UT
    Dec. 30, 2013 6:51 p.m.

    We will spend more than 2 million on calamity cleanup.

  • Schnee Salt Lake City, UT
    Dec. 30, 2013 6:48 p.m.

    Can my 1-2 dollars worth of taxpayer money of that 2 million go towards trying to get the lawyers to make "Mawwiage is what bwings us together, today" the first line of their opening statement?

  • Hutterite American Fork, UT
    Dec. 30, 2013 6:24 p.m.

    It'll be interesting to hear what kind of argument we get for two million bucks as we try to convince the supreme court that the constitution does not apply to everyone.

  • truth in all its forms henderson, NV
    Dec. 30, 2013 6:19 p.m.

    $2 million dollars for 2 months of work. I should have went to law school.