Gay Marriage | News | Supreme Court | Utah

Utah Attorney General Will Wait 'a Few Days' Before Appealing Gay Marriage Ruling to Supreme Court

Same-sex marriages in Utah will be able to continue unabated for at least a few more days. The Attorney General has announced that the state won't take its appeal to the U.S. Supreme Court immediately, FOX13 Salt Lake reports:

State_utahThe state had said Tuesday it would file a request with U.S. Supreme Court Justice Sonia Sotomayor, after the 10th U.S. Circuit Court of Appeals in Denver rejected the request. On Thursday, attorney general’s spokesman Ryan Bruckman said the office was coordinating with outside counsel before proceeding.

“The attorney general’s office is working to prepare the appeal to the Supreme Court on the 10th Circuit’s denial of a stay. Due to the necessity of coordination with outside counsel the filing of the appeal may be delayed for a few days,” he told FOX 13′s Ben Winslow. “It is the intent of the AG’s office to file with the Supreme Court as soon as possible.”

The delay means that same-sex marriages would continue to be performed in Utah until the nation’s top court decides. Justice Sotomayor, who oversees the 10th Circuit and Utah federal courts, could either grant or deny the stay, or she could ask the entire U.S. Supreme Court to decide the issue.

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  1. What happens if Sotomayor denies the state but does not ask SCOTUS to decide the issue? Does marriage equality remain legal in Utah by default?

    Posted by: Clayton | Dec 26, 2013 2:28:33 PM


  2. Clayton: Yes, it remains legal in that case. Sotomayor has several choices:

    1. Decline to hear the appeal.
    2. Accept or deny the appeal.
    3. Turn the appeal over to all 9 justices.

    Posted by: Nick | Dec 26, 2013 2:40:17 PM


  3. This is an appeal against the refusal of a 'stay'....
    Sottomayor will deny the petitioner/state, I believe.

    She could think that the time is not yet right for a full SCOTUS hearing on the issue, which would have to be a hearing of the full appeal on the merits, not just on the refusal of a 'stay'.
    On the other hand this is the ideal case to come before the Justices, based on the judgment given quoting the text of the DOMA decision.

    Posted by: JackFknTwist | Dec 26, 2013 2:49:32 PM


  4. If Sotomayor doesn't issue a stay then Utah can appeal again to the entire Supreme Court. If the entire court declines to issue a stay, then they have no one else to appeal to and marriages will continue until the case goes to trial with the appeals court, which will take a while.

    Posted by: Ryan | Dec 26, 2013 2:49:33 PM


  5. As I understand it, the only question before Justice Sotomayor is whether to grant or deny a stay of Judge Shelby's order pending appeal. It would be highly unusual for the Supreme Court to hear an appeal of the the underlying order without letting the Tenth Circuit weigh in.

    The Tenth Circuit has agreed to fast-track Utah's appeal of Shelby's decision, so this appeal to Justice Sotomayor is at least 90% grandstanding.

    If Utah ultimately prevails, it would no longer be required to issue marriage licenses to same-sex couples. With respect to the licenses already issued, it could follow the precedent of the California Supreme Court and declare those marriages that took place to be binding on Utah. Even if it didn't, there is opportunity for the couples married in this window to claim Federal recognition of their marriages. Failing that, a quick trip to New Mexico or California would allow them to be federally hitched.

    Posted by: Rich | Dec 26, 2013 3:07:22 PM


  6. Since this is a stay, they can't appeal to the entire court unless four justices want to hear the case, but the court almost always defers to the presiding judge.

    Posted by: anon | Dec 26, 2013 3:39:33 PM


  7. Justice Sonia SortaMajor has 3 options:

    Grant the Stay.
    Deny the Stay.
    Refer the question of the Stay to the Full Court where it would take 5 to grant [upside, would give a signal on how Kennedy might vote].

    Utah has 3 options if J SS denies their request:

    Ask ANOTHER justice to grant the stay [yes, it can be done and I think we can all name who'd probably or certainly do it], which is less likely, but certainly not unheard of.
    Appeal for a Stay to the full court, where it takes 5 to grant.
    Suck it up and "allow" same sex marriages to continue unabated until the 10th Circuit Court of Appeals hears the case, probably in the Spring of 2014. They can ask for a Stay as part of that appeal. If their case is not persuasive, or if their judges are very NOT conservative, they'd probably be denied [with most likely 1000's of marriages at that point, it would be ridiculous to grant]. The 10th will hear the case with 3 judges, any two wins the day.

    If you were Utah, what would you do? Yup, I'd ask Thomas, Alito or Scalia [pretty much a tossup], Roberts or Kennedy less likely.

    After the initial hearing at the 10th, either losing party can request a hearing "en banc" by the entire 10th which might or might not be all 10 of them [it wasn't the ENTIRE 9th for Prop 8's en banc]. A majority still rules. Less likely for the en banc to grant a stay [it simply becomes less and less an "emergency"]. They can also go straight to the Supremes. If the Supremes refuse the case, they can't go back to en banc, it is done.

    Utah or the Plaintiff's appeal after the 10th Circuit to the Supremes of course requires the Supremes to accept the case. It takes 4 to accept a case. The Supremes are even less likely to grant a stay at that point, it would be many months after marriages were occurring and any "damage" would have been done. And we go back to guessing what Kennedy will say assuming Ginsberg is now on board.

    This is pretty much the same scenario that rolled out for Prop 8. Fastest timetable to get to the Supremes, Fall term 2014 with a ruling by NEXT Christmas. Just as likely to not get accepted until the Spring Term w/ a ruling before Memorial Day. And remember, the Supremes DON'T accept far more cases than they are asked to. Punting this allows them to let the status quo ride, whatever that is at that point [for instance, 10th affirms, it applies to the 10th and only to states with Constitutional Amendments very similar to UT's and perhaps also state laws of a very similar nature. The 10th will decided what OR if the 10th overturns, back to square one in UT and the only question is if the marriages are valid and the 10th will decide that].

    The Ohio case more specifically addresses the major remaining part of DOMA, that states can opt out of the Full Faith and Credit Clause of the US Constitution. But, the legislative branch doesn't get to decide what parts of the Constitution are enforced. Rather, it is the Courts, and most specifically the Supremes who decide that. The Ohio case is red meat to the Supremes and would more likely result in a finding that ALL marriages legally performed in ONE state are legal in ALL states for all purposes whatsoever. Finding against us would require either that ALL marriages had to be performed in the state of residence to be valid [vast inconvenient for the straight population] OR carving out a special exemption to a piece of the Constitution that is the bedrock of the Union. The Supremes are very leery of "exceptions" to the Constitution. It is one set of rules, indivisible, that other laws are tested against. The only question is why it took so long [20 years] for them to decide that DOMA was unconstitutional on the face of it.

    Posted by: ben~andy | Dec 26, 2013 3:43:25 PM


  8. Ultimately, Utah will be faced with full approval of SSM, and there will be no turning back. This is the best thing to happen since Windsor and is made possible by the striking down of DOMA's section 3. This successful litigation provides a blueprint of attack for the remaining 28 states that have constitutionally outlawed SSM.

    Posted by: Joseph | Dec 26, 2013 3:51:03 PM


  9. I would only add: it's my understanding, that if Sotomayer would for some reason grant the stay, then the plaintiffs also have the ability to take it to a different SCOTUS justice (i.e. like Ginsburg). And if that second justice is not in agreement, then it would go to the full bench regardless. (At least, that's what they seem to be saying at the Equality on Trial website.) Please correct me, if I'm wrong.

    Posted by: Lexis | Dec 26, 2013 4:34:39 PM


  10. Outside council that means Boner? Of course these people think they can win even though the Appeal Court stated that they have little chance of winning in their denial of stay.
    Not saying I am surprised because in the last election, Romney's camp thought they were winning according to their own polls.

    Posted by: simon | Dec 26, 2013 5:14:34 PM


  11. please, please... stay
    https://www.youtube.com/watch?v=wjhrd-PMKxI

    Posted by: woody | Dec 26, 2013 5:30:51 PM


  12. This is pretty much the same scenario that rolled out for Prop 8. Fastest timetable to get to the Supremes.

    Posted by: Attorney | Dec 27, 2013 6:08:56 AM


  13. Given Utah's history of polygamy, they should be prohibited from using the term "traditional marriage" in court.

    While they can say whatever they want on TV and in public, what they are permitted to say in court can be limited.

    Posted by: Gay Guy | Dec 27, 2013 7:39:31 AM


  14. Thanks for all the clarification! Its very helpful. But what happened to Ari Ezra Waldman? I always liked his contributions.

    Posted by: jlavoy | Dec 27, 2013 10:26:56 AM


  15. Agreed, please bring back Ari, we need someone who knows what they're talking about to write legal posts.

    Posted by: Eddy | Dec 27, 2013 11:06:18 AM


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