Appeals Court Declines to Halt Gay Marriages in Utah

The 10th Circuit Court of Appeals has rejected the state of Utah's request to stop same-sex marriages from taking place there, the AP reports:

UtahThe appeals court said in its short ruling that a decision to put gay marriage on hold was not warranted, but said it put the case on the fast track for a full appeal of the ruling.

Utah's last chance to temporarily stop the marriages would be the U.S. Supreme Court. That's what the Utah Attorney General's Office is prepared to do, said spokesman Ryan Bruckman. "We're disappointed in the ruling, but we just have to take it to the next level," Bruckman said.

Gov. Gary Herbert's office declined comment on the decision.

Carl Tobias, a constitutional law professor at Virginia's University of Richmond who has tracked legal battles for gay marriage, thinks Utah faces long odds to get their stay granted, considering two courts have already rejected it and marriages have been going on for days now.

"The longer this goes on, the less likely it becomes that any court is going to entertain a stay," Tobias said.

The next step of the 10th Circuit's appeal process is overseen by Justice Sonia Sotomayor, who could decide the matter on her own or refer the matter to the whole court for consideration. Sotomayor was one of the five pro-equality Justices in the DOMA ruling this summer. 

Congrats to all the couples in Utah who continue to take part in this historic moment! 


  1. Dan B says

    so this is probably it, right?

    if there is to be a sweeping ruling from the SCOTUS, it will likely be a result of Utah’s appeal of the 9th district court’s ruling that the state’s same-sex marriage ban violates the equal protection and due process clauses of the US Constitution, no?

    the 10th circuit court of appeals has agreed to an expedited hearing, the initial ruling judge’s opinion is sound, and Utah has vowed to appeal to the supreme court. this should be the case in which the SCOTUS will rule in the wake of Windsor, Lawrence, and Loving, to strike down state bans on same-sex marriage and bring marriage equality to the full United States – right?

  2. mickey says

    I just cant help but smile thinking how butthurt Mormon town is this Christmas.

    So happy for the couples.

    Whole thing reminds me of the song from The Color Purple: Gods trying to tell you something.

    Merry Christmas & Happy Holidays

  3. UFFDA says

    This is delicious to the point of being tragic. In effect the courts decisions are thwarting the will of God and sacredness itself is being challenged, if not mocked. That would have to be view of top Church authorities, in any traditional church (the Book of Mormon aside.)

    So that would be pseudo tragic since, beginning with a virgin birth, all the presumed sacred/supernatural aspects of traditional religion are not credible, to say the least. Or to put it another way, “it is a tale told by an idiot, full of sound and fury, signifying nothing.”

  4. simon says

    One of the two judges who sat at the appeal court was a Bush appointee. Even he agreed that the stay should be denied because
    “letting the marriages go ahead would not cause “irreparable harm” and that it doesn’t have a good shot at winning its appeal”
    At this point, it is more and more like New Jersey where the court had similar opinion.
    While Christie was smart enough to fold tent, the Utah governor is expected to fight on till the Supreme Court. As DAN said, it is not necessarily a bad thing.

  5. Bob says

    The 86 year old “prophet” of the morhole church needs to do some fast talking to God…

    1– If the mormon-controlled Utah Government takes this to SCOTUS, they will lose and UTAH-HA-HA-HA will be the State that caused all the other States’ laws to be struck down.
    This will make the morholes even more hated by the evangelicals.

    2– Presently, Gay mormons have to lie or sit in the bad seats of the afterlife. The prophet needs God to give him a way to keep mormon youth from leaving the church to marry in civil ceremonies– HA HA HA

  6. Gregory in Seattle says

    Each federal district has a Supreme Court justice overseeing it for just such situations. The Tenth Circuit has Justice Sotomayer, who ruled with the majority in _Windsor_. Unless Utah can come up with some new, amazingly good material, she is not going to issue a stay.

    There are already 700+ same-sex marriage in Utah in just the last three days. By the time the appeal hearing starts, I would not be surprised to see 3000. At that point, repeal will be very unlikely.

    I dare say, this is a done deal.

  7. Lexis says

    @ Gregory in Seattle –

    Let’s hope. But according to the legal reporter/editor over at the Equality on Trial website, if Sotomayer decides herself, “the losing party can ask another Justice or the full Court. But the other Justice could also ask the full Court to decide” as well.

    This “wrinkle” as it was termed was added by the editor in the comments section to the article:

  8. Buster says

    Dan B – The fact that Utah’s government is vowing to “take this the Supreme Court” doesn’t necessarily mean that the game is over or that Utah’s case will be the one that changes everything.

    In the vast majority of cases, the Supreme Court chooses which cases it will hear. Often their decisions about which cases to take can be influenced by by political and sociological factors. Some Justices may feel (and Justice Ginsburg has obliquely suggested) that when it come to a declaring a national right to equal marriage (or any big social change) it may be best if the Supreme Court waits for more state legislatures, state courts, state voters and/or lower federal courts to jump on board on their own. It might be more practical for the Court to take such a case when there are, say, 25-35 states that allow equal marriage, rather than create the perception that the Court “forced” it on more than half the states.

    Of course, this kind of approach can be frustrating, and it IS unfair to those who end up having to wait. But at times members of the Court take a longer, wider view and see some wisdom in letting things bubble through the system and earn some grudging acceptance before the Court acts.

  9. says

    Just got in from a Christmas Eve party. Merry christmas & Happy Holidays everyone!

    Can’t say that I’m surprised at the 10th no stay decision. Loved the short ‘after analyzing ruling’ line. Sotomayor won’t issue a stay and yes they can ask other Justices but that opens up a can of worms too. Would Scalia or Thomas risk retribution from Sotomayor at another time if the situation were reversed? Circuit Courts have Justices assigned for a reason.

    A stay after 1000 couples have exchanged vows that can’t now be rescinded. What’s the point? I’d have to think that Scalia knows better. Thomas would do it because he’s pwned. Sotomayor needs to put the fear of Latina vengeance into him.

    Utah is in trouble at the 10th no matter how this plays out on the stay. Shelby eviscerated every argument put forward by marriage equality opposition. What judge there is going to be able to find error enough in Shelby’s ruling to reverse his decision and stand up to scrutiny under Kennedy DOMA language?

    If Shelby’s ruling is upheld at the 10th (which I fuly expect it will) it’ll be our first Circuit Court victory and could be applied to Kansas, Oklahoma, & Wyoming. That would speed things up a lot.

    I’d love to see Shelby’s ruling be the framework for a SCOTUS national decision.

  10. Steve says

    One of the funniest responses by anti-gay creeps is “some judge thinks he knows better than the voters of Utah.” The other side of that coin is: “Stupid Utah voters think they know better than an Appeals Court judge.”

    Congratulations LOVING COUPLES in Utah, bravo to the judge who sees no reason to impede equal rights so bigots feel some sort of satisfaction. I’m sure “traditional couples” will be breaking up all over the place this Christmas in Utah

  11. Gay Guy says

    In what way is the Utah prohibition on same sex marriage different from California’s Prop-8.

    The only thing that I can think of is that California actually had same-sex marriages and continued to recognize those done before Prop-8. I don’t that is in any way relevant.

  12. rroberts says

    Go ahead, Utah, bring it on !!

    Even Fatso Christie was smart enough to let it drop, opting to lash out and snarl up bridge traffic instead of wasting money and court time on a fight he saw he couldn’t win.

  13. Craig Nelson says

    Jesus said Greater love hath no man than to lay down his life for his friends. I wonder if deeply religious Utahns will show the same sacrificial spirit by foregoing appeals to SCOTUS and the 10th. If the 10th rules in favour of marriage equality then that ruling will apply without a stay to the whole Circuit. If they are really sacrificial they’ll just suck it up and give those states a few more years of marriage inequality. At the moment Utah is trying it’s darndest to bring marriage equality to the whole US in the shortest possible time. Either way am happy but their current work extending equality is very much appreciated.

  14. simon says

    You may be right. The state by state approach is a bit tedious. The Utah case is still important as a test case. If the Supreme Court allows the same-sex marriage decision to stand, that means if other states follow suit, the result will likely to be the same.
    Probably organizations like ACLU will watch this case closely. If the Supreme Court decision is favorable, they will swarm the courts with cases in other red states. Very soon the magic number of 25 or 35 will be reached.

  15. JackFknTwist says

    M0st likely this will go all the way , beyond the 10th Appeals.

    Then SCOTUS will take the Appeal will allow Judge Shelby’s original ruling to stand; same sex marriages will stand in Utah……and will be followed in other states where challenged.
    Thus Ginsberg will be vindicated in her softly softly approach.

  16. Rich P says

    @Jackfnktwist: If SCOTUS takes the appeal and allows Judge Shelby’s ruling to stand, unless they find something that makes his or their logic specific to Utah, nothing will follow “in other states where challenged.” SCOTUS upholding this decision would immediately apply marriage equality nationwide.

  17. Lymis says

    “In what way is the Utah prohibition on same sex marriage different from California’s Prop-8.”

    At this point, it’s different because the actual state actors – the governor and whoever the hell is running the Attorney General’s office at this point – are pursuing the appeal. In the Prop 8 case, the government declined to appeal.

    The Supreme Court declared that they should never have gotten the Prop 8 case, and declined to rule on it. So the district court ruling stood, without affecting any other state in the 9th Circuit.

    Since the state IS appealing this one (so far, at least), the case will go forward, and since this is a clear-cut clean case about whether or not a ban on marriage is allowable (rather than the Prop 8 situation where a referendum took the rights away once they were granted under the state constitution), this is unlikely to get sidetracked into some legal fine point. If the 10th Circuit rules that the ban is unconstitutional, it will be binding on the other states in the circuit.

  18. anon says

    The 10th must use an unusually strict definition of “harm” when issuing this ruling. Normally, “harm” means something like “change in the status quo”. The practical idea being that a reversal will lead to a lot of headaches. My guess is that the court understands that if reversed, the marriages will still be valid. It also helps that there are no federal issues here, because, as a federal court, they need to take that into account.

  19. simon says

    After reading the legal opinions here, this honor here decided that there are only two possible outcomes.
    1. The Supreme Court takes up the case and it is fini. End game as Rich indicated.
    2. The Supreme Court decides to pass. The state by state scenario will apply that will finally force the SCOTUS hand.

  20. JackFknTwist says

    @ RICH P :
    I thought that a decision on Utah by SCOTUS would only be specific to that state, and an example to other states.
    But I guess if Judge Shelby’s judgment is in respect of the validity of same sex marriage on the basis of equality …..then you are right. But it would have to be a fundamental following of the DOMA decision, and along the path of ‘marrying anyone’ which so terrifies Scalia.

  21. Rafael says

    @RICH P

    In Perry v. Brown the SCOTUS simply allowed Judge Vaughn Walker’s ruling to stand. The same could happen with the Utah case. It would be the easy way out for the Supreme Court to not deal with what is clearly a National issue.

  22. woody says

    The Supreme Court is going to have to deal with gay marriage nationally, Rafael. There are just too many national issues that relate to it. Does a company that operates across state lines, like IBM or Target, want to deal with conflicting tax policies from state to state? Does a married couple lose it’s status when one spouse ends up in the hospital in a state without marriage equality? Is Mary not the legal parent of Timmy in half the states they cross when they drive cross country? The Supremes will have to take at least one of the cases that are bubbling up all over the country. And there are so many cases and so many related issues that they’ll have to take one soon.

  23. jamal49 says

    It is hard to believe, isn’t it, that this is happening? It practically seems inevitable. I still worry, though, that somehow, someway the right-wing can throw a wrench into the works. I just keep hoping that what we are witnessing is the permanent dissipation of American conservatism.

  24. Lexis says

    With Utah now, over 39% of the US population has access to marriage equality. So if a couple of big states (e.g. Pennsylvania, Ohio, Michigan) were added with an Oregon or Colorado thrown in as well, SCOTUS would have to deal with more than half the country already having it.

  25. Artie_in_Lauderdale says

    @ Woody,

    I agree that SCOTUS will have to pick some case to decide on the national question. I don’t think it will be the Utah case; I think it will be the Virginia case that Ted Olson and David Boies are currently working on. That would let SCOTUS decide the case after the marriage ballot initiatives in November, 2014. I think SCOTUS would prefer to see the progress of marriage equality up to and including the 2014 ballot initiatives.

  26. says

    Loved this from Dan Rafferty in the Utah Gazette.

    Dan Rafferty (RiffRaffAmI)

    Ann & Mitt own homes in CA, NH, UT, and MA all four have Marriage Equality now. Could someone please get them to buy a home in one of the Southern Red States maybe Texas, Louisiana or Florida? :)

  27. simon says

    The mantra about “traditional marriage” by same-sex marriage opponents was ridiculed by Judge Black of Ohio and may well be their Achilles’ heel in future litigation.
    Black wrote that “the fact that a form of discrimination has been ‘traditional’ is a reason to be more skeptical of its rationality.”

  28. JJ says

    @Rafael, SCOTUS didn’t endorse Judge Walker’s decision in the Prop 8 case. They vacated the appeal, saying the Prop 8 sponsors didn’t have standing to appeal. The Utah case is a very straightforward case, clean of such technicalities. If SCOTUS takes the case, their ruling will apply nationally. There doesn’t appear to be a wrinkle in this case that would give SCOTUS the option of limiting the outcome to Utah.

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