Decision on Utah Stay of Same-Sex Marriage Ruling Won’t Come for Days; Judge Trolled Scalia

There won't be a stay in the ruling for days, the AP reports:

ShelbyThe state filed a notice of appeal late Friday and was working on a request for an emergency stay that would stop marriage licenses from being issued to same-sex couples.

‘‘It will probably take a little bit of time to get everything in place,’’ said Ryan Bruckman, a spokesman for the attorney general’s office. Bruckman said the judge told the attorney general’s office that it would be a couple of days before he would review any request for an emergency stay.

Meanwhile, the County Clerk's office in Salt Lake City opens at 11 am on Saturday, ready to marry.

Reuters adds that Judge Shelby (pictured) completely trolled SCOTUS Justice Antonin Scalia in his ruling:

Scalia warned that the Supreme Court's reasoning that struck down the Defense of Marriage Act — which denied federal benefits to same-sex couples — could be used to strike down state laws banning same-sex marriage. Scalia, who's notoriously anti-gay marriage, was saying this was a bad thing. In an interesting twist, Utah's Judge Shelby quoted Scalia's negative prophecy in his pro-gay marriage opinion:

"In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today's opinion … is that DOMA is motivated by 'bare … desire to harm' couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."

Shelby then wrote that he "agreed" with that part of Scalia's opinion, and offered his response. Though Scalia meant it as some kind of dire warning, Shelby cited the Supreme Court's decision as a reason to overturn Utah's law:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

And also cited Scalia's ruling in Lawrence v. Texas:

The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.


  1. jsb says

    Utah!!! I imagine the LDS (Mormon) Church is having an absolute fit over this, never would have expected Utah to turn so quickly. What could be any reasonable rational for an appeal? It looks like this judge wrote a compelling decision covering all the bases, much like Judge Walker with Prop 8. Using Scalia’s words to reinforce this decision was brilliant.

  2. Francis says

    Judge Shelby definitely is a nice looking man. JSB, you’re right, Judge Shelby threw the hammer down and really totally destroyed all arguments against marriage equality…the 10th Circuit is quite conservative, but to overrule this will take a lot of work and gymnastics. And it’s amazing to see Scalia, to see the Mormons, and to see the Republicans in Utah, take such a HUGE loss. Scalia was right all along—the DOMA decision was/is going to lead to nationwide marriage equality. And that’s not a bad thing at all :)

  3. Francis says

    Any potential stay won’t be granted until Monday or Tuesday at the earliest, M. That was reported yesterday. No stay is expected until early next week. That, of course, if a stay is granted at all, which none of us can say for certain will happen.

  4. Francis says

    SLC will not be opening offices to marry same-sex couples. So basically, the number we’re at now, somewhere between 110-115 married couples in Utah, in Salt Lake, is the number that we’ll be at heading into Monday it appears. Then we’ll have to see if a stay is issued before that number is added on to.

  5. says

    Nominee for best headline of the year: “Judge Completely Trolls Justice Scalia In Striking Down Utah’s Gay Marriage Ban”

    @M: It could be, but since the horse is already out of the barn (a bunch of same-sex couples are married) if there is a stay, a day or two either way isn’t going to matter much.

  6. JackFknTwist says

    No stay…..the balance of convenience lies with the Respondents- the couples who are married;
    no harm ensues to the Applicants for a stay if it is refused.
    Application for a stay denied. Signed;
    The Federal Appeals Bench.

  7. Gerry says

    Would love to see what @Ari would say what justifies a reason for an emergency stay. I know in the past, i.e. the Prop 8 case, they were given out left and right – but now I would think that the bar would have changed a bit.

  8. Gerry says

    Another point… recently SCOTUS refused to grant a stay to the Texas abortion law… apparently they didn’t think the harm to those seeking abortion was substantial enough to justify a stay. Utah hasn’t been able to articulate sufficient harm that gay marriage has caused, but the harm to those who cannot marry is obvious. I can’t imagine what legal pretzel a court could twist itself into to justify a stay…this is a federal court of course, but recently the New Jersey SCOTUS refused to stay an order for gay marriage prompting the state to withdraw from their challenge.

  9. woodroad34d says

    Not only did he thrust Scatalia’s words and inept logic down his throat, he did it with John Roberts wit.

  10. Jack says

    Will no county clerk offices be open this weekend? Somewhere I had read that the Davis or Morgan county offices were opening today.

  11. SeattleMike says

    I could hear Scalia’s head exploding from here on the West Coast. This is brilliant, turning Scalia’s words back on him. It’s like my standard response now to being called a faggot: “You say that like it’s a bad thing.”

  12. dearcomrade says

    This is a great Christmas present.

    Lets hope 2014 brings marriage equality to ALL 50 states!

  13. Lexis says

    LOL! .. And here’s hoping a stay is not granted by using several statements from Justice Kennedy’s DOMA opinion about how denial of same-sex marriage creates second class citizens and damages children in those households. That’s the “emergency” that needs to be remedied.

  14. anon says

    A very cheeky ruling. He might get a reprimand from the 10th or the Supreme Court itself. Anyway, there already was a Federal District court ruling over Prop 8, so this isn’t the first. There have also been federal court rulings against SSM in the past too.

  15. pdaku says

    By dumping a big load of coal in Scalia’s stocking, Judge Shelby put the Merry in my Christmas. I appreciate his reasoning and his brilliance, along with the slight hint of mischief in his smiling visage.

  16. Rich says

    Judge Shelby’s decision leaves open a question for one pair of the plaintiffs: even though they legally married in Iowa, do they need to marry again in Utah to have the state of Utah recognize their marriage?

  17. Bill says

    @Gerry: I don’t expect Ari to say anything: if he can think of a reason that might justify a stay, why post it on Towleroad, which would allow the state of Utah to get free legal advise to our detriment?

  18. Lexis says

    @ M – Did you read the whole article from Buzzfeed. It says:

    “Shelby already told lawyers for the state that he would not issue a stay of his ruling before receiving a written request for a stay — which the state has now filed — AS WELL AS receiving a response from the plaintiff same-sex couples in the case.”

    So no ruling will come until after a response has also been filed.

  19. Tony says

    It’s interesting to note, that this case will most likely be appealed all the way to the US Supreme Court by the losing party…..Unless the 10th circuit denies the appeal and Governor Herbert just gives up as Chris Christie did. Perhaps Governor Herbert would just give up the fight instead of taking the chance that his attorney looses at the Supreme Court and he and his state become responsible for every Mini DOMA across the country falling. What RepubiCon governor would want that honor? Chris Christie didn’t. Susanna Martinez of NM didn’t even join the NM Court case…she has vice presidential hopes. When these RepubliCon Governors don’t get involved or give up their fight before getting to SCOTUS, that says a lot about their belief in their chances to win. Their best argument to ban marriage equality continues to be, we must ban SSM so that heterosexuals will responsibly pro-create. Yet with their ridiculous argument they can’t prove the causality of one to the other.

    Remember the SSM opponents consider Kennedy the “swing” vote. It’s pretty clear which way he swings, and with the best argument being banning SSM makes heteros create babies responsibly, I can’t see him buying into that argument. And Ginsburg has already been officiating SSMs in recent months.

  20. TKinSC says

    A stay is wholly appropriate in this case, for several reasons:

    1) It is the opinion of one judge, without clear precedental mandate, overruling the will of millions of people.

    2) Federal courts in other jurisdictions (such as Nevada) have ruled that there is no right to same-sex marriage. There is thus a conflict of law, and thus benefit of the doubt should be given to the state until that conflict is resolved.

    3) If this decision is ultimately overturned, chaos will result, as those marriages already entered into will be declared null and void from the start, and any state action based on them (such as tax refunds, divorces, etc.) will have to be reversed.

    4) If the decision is upheld by the 10th Circuit, that would legalize same-sex marriage throughout the circuit. I highly doubt such a sweeping ruling would not have a stay attached to it pending appeal to the Supreme Court. That stay would include Utah, resulting in the chaos noted above if no stay is issued before then.

    5) The judge (and Justice Scalia) may well be right about what the Windsor decision means for same-sex marriage nationwide. However, better to let the Supreme Court majority speak for itself, than to presume that they are going to say something they haven’t yet said, and to force a change in policy in the meantime.

  21. Gerry says

    @TKINSC – well I doubt the stay will come from Shelby… if you read his opinion it pretty much slices and dices what the state used as their justification for a stay. As far as what other cases have decided… that was all before Windsor… the landscape has since changed. The chaos argument just doesn’t hold water anymore. Everybody with half a brain now realizes that marriage equality is going to happen. It is inevitable. Shelby’s opinion even quotes Scalia in saying: “‘preserving the institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” And as Lawrence, Windsor, Romer and other cases have already decided that is not allowed. If they are issued a stay, especially in light of what SCOTUS just did on the Texas abortion case, it will be a complete joke.