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Why There Should Be No Stay of Marriage Equality in Utah

BY ARI EZRA WALDMAN

131223-utah-gay-marriage-hmed-10a.380;380;7;70;0Gays and lesbians have been free to marry in Utah -- yes, Utah -- for two weeks. Judge Richard Shelby, who was appointed by President Obama at the behest of Utah's arch-conservative Republican senators, cited the Supreme Court's decision in United States v. Windsor when he said that the Constitution's guarantee of equal "dignity" for gays and lesbians requires the state to recognize their love. Since the decision was handed down, hundreds of gay couples, including Natalie Dicou, left, and her partner, Nicole Christensen, have gotten married.

Now, the State -- the home of the Mormon Church, Prop 8's principal benefactor -- wants those marriages to stop. After failing to ask for a stay during the course of the case before Judge Shelby, after messing up its request after the fact, and after ultimately losing before the Tenth Circuit, the State has one last hope to delay equality: Justice Sonia Sotomayor.

There are many problems with the State's request. Let's set aside for the moment the fact that the conservative leaders of Utah's state government want to deny the very existence of our love. Set aside the injustice of anti-gay marriage discrimination, in general, and focus on the stay itself.

The standard for a stay in federal court is demonstrating "irreparable harm." Where is the harm in letting gays continue to marry?

AFTER THE JUMP, I discuss the problems with the stay argument in more detail.

Utah has made such a mess of its anti-gay arguments that it's almost as if the state's attorneys were litigating the case while in some kind of stupor. In previous gay marriage cases, the party defending the bans generally included a request for a stay in their motion documents so that even if -- or when -- they lose, they could continue their hopeless anti-gay cause without having to recognize gay rights in the interim.

The stay is also important as a matter of law. Sure, once marriages start happening and people see pictures of happy couples, some old, some young, some black, some white, just celebrating their love, opposition to gay marriages tends to drop. More importantly, it is hard to wriggle out of the fact of gay marriages after they already exist without incident. Gays have been marrying in Massachusetts for almost 10 years and the sky hasn't fallen and religious rights have not been compromised. The longer gays can marry in Utah, the easier it will be for pro-equality advocates to argue that recognizing our right to marry causes no harm.

Despite the importance of the stay to their cause, Utah's attorneys never asked for one. Then Judge Shelby issued his decision, at which point Utah didn't ask him for a stay, but went right to the Tenth Circuit, the appellate court covering Utah. But that's not how it works. First the district court judge has to rule, then the circuit court. Utah's acting attorney general apparently needed that crash course in Law 101.

So, Utah went back to Judge Shelby, who, naturally, declined to interrupt the implementation of his own order. The State then returned to the Tenth Circuit only to lose officially. Meanwhile, hundreds of gay couples were marrying in almost every county.

Sotomayor-small_0Justice Sotomayor is Utah's only hope. In addition to serving as the final arbiters on all legal questions, the nine justices of the Supreme Court have administrative responsibilities. They divide up the circuit courts and whenever emergency motions come from one of those circuits, the assigned justice can either decide the motion herself or refer it to the full Court. Therefore, Justice Sotomayor could grant the stay, deny the stay, or ask the entire Court to make the decision (perhaps, though not necessarily, after some briefing). It's entirely up to her.

The standard she, and any other federal judge, should use when determining if they will grant stays of court orders is "irreparable harm": Will the losing party be irreparably harmed if the order goes into effect? Stays happen in several cases, like in a custody case where loss of custody for any extended period of time could do irreparable damage to the parent-child relationship, or in any case where money damages doesn't cut it. In a case like one challenging a ban on same-sex marriage, the state has to argue that, somehow, allowing gays to marry does irreparable harm to the state, to marriage, to government interests.

The problem is that gays have been marrying in Utah for some time and nothing terrible has happened. And gays have been marrying throughout the country and nothing bad has happened. What's more, the Supreme Court itself has said that gays are entitled to equal "dignity," a guarantee that is denied every moment they cannot wed. If there is irreparable harm, then, it is to the gay couples that the stay would prevent from marrying. In this way, a stay is not just unwarranted, it is harmful and unjust.

Some argue that stays should be granted to maintain the status quo until a final decision has been made. There are two problems with that argument. First, the status quo in Utah is gay marriage is legal. Second, if we granted every case a stay until the Supreme Court denied review or issued a decision, no court orders would function.

Others argue that the stay should be granted because gay marriage is such a divisive political issue and, therefore, courts should move slowly when dipping their toes into such waters. But such a basis for a stay, though unfortunately common, has no basis in law. You have to show that a deviation from the pre-order state of affairs would do irreparable harm to the aggrieved party. There is nothing in that standard about moving slowly.

Stays do not exist to let us take the scenic route to equality.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. As always, I appreciate Ezra's explanation of legal issues.

    Posted by: homer | Jan 2, 2014 12:47:31 PM


  2. i still think its delicious this is happening in UTAH after the LDS supported anti gay initiatives in other states.

    Way back in 04 when we under severe attack (and GLAAD and the Dems really didn't lift a finger) the point I kept trying to make was that the entire point of the constitutional amendments was not just a wedge issue but the fact the right had figured out the Gays would win in court again and again and they already lost.

    Posted by: Homo Genius | Jan 2, 2014 1:00:12 PM


  3. Yes, the status quo as it is , without a stay, should be preserved.
    There was no original application for a stay.
    A stay now would do irreparable harm to those couples who married....socially and financially and in their personal lives and relationships.

    Refusing a stay to the State would cause no harm to the state's institutions - as ably demonstrated by Massachusetts and others......no one has ever produced a shred of evidence which suggests that straight marriages are disintegrating because of same sex marriages.

    "It is a counsel of prudence to preserve the status quo".....but that status quo is Judge Shelby's judgment......not some fanciful speculations by the tardy lawyers of Utah's Masters.
    There are no grounds for a stay.
    There was no original application for a stay.
    Hundreds have married ,relying on the integrity of the Shelby Judgment, they have taken on burdens and commitments.
    Any stay now would be flying in the face of the judicial trend of decisions.

    Posted by: JackFknTwist | Jan 2, 2014 1:02:13 PM


  4. Ari Ezra Waldman, I have read around that if Sotomayor refused to put a stay in place, Utah can again file a motion for stay with another Supreme justice /or with whole Supreme court. Is that true, can you help us explain that ?

    Posted by: Andy Towlette | Jan 2, 2014 1:12:49 PM


  5. The only argument that a stay should be granted is the likelyhood of winning the case. From following many court cases, this is what I surmise. Should Utah actually win an appeal and reversing the decision to invalidate Amendment 2 (it is 2 right?), all the marriages up to this point should be invalidated because that means the original ruling was always null and void and everything up to that point was never valid. This was the reason for the stay in California. The 17,000 couples that were already married did so at a time when gay marriage was legal with no pending litigation. In this case, every marriage is under the assumption of pending litigation. A ruling is not official until all appeals have been exhausted and the harm will be having to reverse all the licenses that will have become void. If they want to make a case, that is the way to go. They need to drop "cause the people voted for it" line.

    Posted by: Richard | Jan 2, 2014 1:16:55 PM


  6. Waldman is so fine! Thanks for that eloquent and clear explanation.
    "Stays do not exist to let us take the scenic route to equality" Brilliant!

    Posted by: garryo | Jan 2, 2014 1:25:07 PM


  7. @ RICHARD :
    I can't agree that "a ruling is not official until all appeals have been exhausted".
    That would leave many judgments in limbo, where appeals are not pursued or deliberately delayed by endless motion filing.

    Posted by: JackFknTwist | Jan 2, 2014 1:27:09 PM


  8. The 10th circuit has already agreed to hear Utah's appeal of the decision on an expedited basis and it can be demonstrated that not allowing a couple with immediate health concerns to marry would cause them harm.

    I expect she will let the status quo stand pending the expedited appeal.

    Posted by: bkmn | Jan 2, 2014 1:44:14 PM


  9. I vaguely remember reading something somewhere on New Year's Eve that Utah specifically requested from Sotomayor that if she decides not to issue a stay that she ask the entire court to rule on it, not another individual Justice.

    But do they have to take it up?

    SCOTUS can refuse the request and that would effectively let it run it's fast tracked course through the 10th, without a stay.

    Posted by: SERIOUSLY | Jan 2, 2014 1:44:20 PM


  10. It's lucky that this went to Sotomayor and not to Scalia.

    Scalia would not only have granted the stay, but he would also have nullified the existing marriages and made some broad-ranging, inflammatory ruling that would have imperiled all future equal marriage rulings across the country.

    When Dickens wrote in "Oliver Twist," that, "The law is a ass,"
    he no doubt had Scalia in mind.

    Posted by: gr8guya | Jan 2, 2014 1:57:01 PM


  11. She just granted a stay to those Catholic nuns. Probably she won't grant it to the Mormons because the Constitution amendments were written without the Mormons in mind.

    Posted by: simon | Jan 2, 2014 2:19:09 PM


  12. Most likely, Justice Sotomayor will refer the stay request to the full Court so that it gets voted on by all 9 Justices. In most very important cases, the "one" Justice who gets the stay request will allow all 9 to vote on it. If that happens, all bets are off -- it would probably be a 5 - 4 decision to grant or deny the stay, because it's unclear what Justice Kennedy will do regarding a stay.

    Even if Justice Sotomayor does not grant the stay, Utah is allowed to go to other Justices -- like Scalia. In that situation, the other Justice would normally refer the stay request to all 9 Justices because s/he wouldn't be very comfortable "over-ruling" Justice Sotomayor's decision to deny the stay. But here again, it's unpredictable -- because if Utah gets denied by Justice Sotomayor, and then asks Scalia for a stay, he could grant the stay on his own without going to all 9 Justices.

    This is not just about the Constitution or legal standards. Make no mistake that politics is going to play a role for some of the Justices; the only question is whether it plays a role for a majority of them. Does anyone remember Bush v. Gore? That was a political decision masked in legalese. If a stay is granted here, it will be primarily due to politics -- and that cannot be ruled out.

    Posted by: MiddleoftheRoader | Jan 2, 2014 2:48:27 PM


  13. Ari, I'm a mathematician, not a lawyer, but we share the same need for precision of language. When you say "The standard for a stay in federal court is demonstrating "irreparable harm." Where is the harm in letting gays continue to marry?", I have an uneasy feeling of imprecision.

    It seems that demonstrating "irreparable harm" would be an argument that might be made in the case itself, but the standard for a stay should be a little different. The harm could occur from the inconsistency if marriage continues now, and later the marriage ban is upheld either by the 10th Circuit or by the Supreme Court. I would agree that there is some harm to the state in that chaotic situation. (Though California demonstrated that there's not all that much harm in it.)

    The 10th ruled that there's not enough likelihood of a reversal of the lower court to warrant a stay. Utah didn't even cite a liklihood of reversal by the 10th as one of its reasons, but did cite the possibility of the Supreme Court eventually taking the case. If Sotomayor grants the stay, it's not a big deal; in fact, the surprise is that neither the District Court not the Circuit Court granted it. Given Sotomayor's stay of part of Obamacare because of religious objections, it wouldn't surprise me if she grants a stay to Utah.

    Posted by: Pogovio | Jan 2, 2014 3:44:56 PM


  14. What a fail of a post by prof at a 3rd tier law school. For the record, I agree that there should be no stay, but I think that Towleroad readers deserve more than the shallow pap churned out by Ari.

    - There are 3 prongs to the test to determine whether a stay is warranted: 1) the likelihood that the appellant will prevail on the appeal, 2) whether irreparable harm will result if a stay is not granted and, 3) whether the balance of the equities favors or disfavors a stay. Ari ignores prongs 1 and 3 and focuses only on 2. While "irreparable harm" is the most important of the 3 prongs, it is counterbalanced by the other 2. Moreover, the "likelihood of success" prong is the most significant for the case overall, because it will hint at how Sotomayor or the full SCOTUS will view the case on the merits. Fail, Ari.

    - Ari fails to discuss the concern that if the district court decision is reversed, thousands of marriages might then be voided. People will have re-ordered their lives, moved residences, opened bank and investment accounts, changed wills, and filed taxes based on their new marital status. What happens if that has to be unwound? This is the main reason that most pro-gay marriage rulings in the past have been stayed, including in the Prop 8 case. Ari fails to discuss this. Fail!

    - Ari fails to discuss the standard by which Sotomayor may decide to handle this herself or refer it to the full court. This is an esoteric area of SCOTUS procedure and it would have been great to get information on it. Of course, Ari says nothing. Fail!

    - Ari does not even mention that if Sotomayor denies the stay, Utah can seek out any other individual Justice and get a re-do on its motion. How does this work in practice? Is it often done? Will the second Justice be receptive or will he feel insulted that he is being "shopped" by the appellant? Good questions. Too bad Ari doesn't even raise them, let alone answer them. Fail!

    Ari, please stick to things you do well - like belittling the cyber-bullying of gay youth and going to bat for homophobic bullies like Dharun Ravi.

    Posted by: AriHeartsDharun | Jan 2, 2014 3:45:28 PM


  15. Pogovio,

    That's the key argument in a nutshell: if you stay the decision and the gays win, no harm no foul. From the time Utah became a state, the gays never had the right to marry , so their having to sit on ice for a few months while the appeals are hashed out is no big deal.

    If on the other hand, you don't stay and Utah wins, then thousands of gay marriages may have to be unwound. There would be messy litigation over whether they could or should be unwound. And in the interim period, when these marriages are going forward, the state and many thousands of individuals and businesses will be making important decisions (tax filing status, application of estate tax, spousal insurance coverage, spousal pension coverage) based on a marital status that is later determined not to exist. Chaos ensues.

    Although I totally disagree with it, this is the argument that usually works and procures a stay. Fortunately, Utah did a really awful job of making the argument. Of course, Ari did an even worse job of explaining this to Towleroad readers.

    Ari, why not give up your self-promotion gig at Towleroad and get a job as Dharun Ravi's fluffer?

    Posted by: AriHeartsDharun | Jan 2, 2014 3:59:00 PM


  16. Thanks, Ari, for the analysis.

    While I don't appreciate 'Ariheartsdharun's tone, I am curious as to what happens when the 10th circuit overturns Judge Shelby's decision. Do the Utah marriages cease to exist pending the eventual appeal to the US Supreme Court? Or would there be the possibility of a stay?

    I, frankly, am surprised that Judge Shelby's decision was not stayed.

    Posted by: bravo | Jan 2, 2014 4:54:41 PM


  17. This article is pretty weak sauce.

    It even gets the basic timeline wrong:

    Utah fails to ask for stay during hearing in November.

    Shelby rules Friday, December 20th.

    Utah immediately asks Shelby for a stay without a hearing and files intent to appeal documents with the 10th Circuit Court of Appeals.

    Some 300 marriages occur on Friday.

    Shelby denies stay without a hearing, instead schedules a hearing for Monday, December 23rd at 9am — a full hour after doors open at the Salt Lake County Clerk's offices.

    Utah requests two (!) stays from 10th trying to have a stay in place to keep marriages from occurring Monday morning. I don't understand how this happened, as the 10th rebuked Utah after the first request. But there you go.

    Shelby holds hearing at 9am, on Monday, December 23. A couple hours later he denies the stay.

    By the end of day Monday, some 1000 marriages have occurred.

    Utah returns to the 10th, this time properly, and their request for stay is denied on Christmas.

    Now it goes to Sotomayor — who can hear it herself or bump it up. If she denies the stay, Utah can (I believe) request a hearing before the whole bench.

    Anyway, that's just a rehearsal of what happened. I'm not a lawyer — just a local Utahn rooting for our case to be the one that brings marriage equality to the nation.

    :-)

    Posted by: Silus Grok | Jan 2, 2014 5:48:30 PM


  18. ok...

    "filed taxes based on their new marital status. What happens if that has to be unwound"

    I think this is the most important point. Once some couple's file taxes its a whole new set of lawsuits

    Posted by: Homo Genius | Jan 2, 2014 6:00:00 PM


  19. Bravo, it is a very complicated question about what happens if the 10th Circuit reverses Judge Shelby.

    All of the couples who received marriage licenses and were married are not parties before any court. So, on the one hand, for them to "lose" their status as "married" raises due process questions about whether each couple should be entitled to argue its case to a court before their "marriage" is voided.

    On the other hand, if Judge Shelby's decision to "throw out" the Utah marriage laws was a wrong decision, then perhaps the temporary "suspension" of the Utah laws that resulted from his decision cannot validate sex marriages that are illegal under valid Utah laws.

    There is also a doctrine relating to when something is "voidable", "void", and/or "void ab initio".

    Remember last year when the Supreme Court dealt with a case involving adoption of a child who was one-fourth (or one-eight)Indian. The lower courts had ruled that the initial adoption was illegal, and the child had to be returned to its natural father; the appellate courts refused to grant a stay of that decision, and so the child was returned to its natural father. But then the Supreme Court ruled -- 2 or 3 years later -- that the adoption was not illegal, and it required the natural father to return the child to the adopting parents. Yet all of this back-and-forth happened to the actual parties in the case that was being appealed.

    In the situation in Utah, it's possible that the 10th Circuit won't say anything about the married couples who are not parties to any pending court cases. If the 10th Circuit rules that the Utah laws are OK (and assuming no US Supreme Court review), then what might happen is that Utah begins to refuse to recognize those marriages -- refuses to accept joint tax returns, refuses to continue to provide certain state benefits, etc. In that situation, each couple would have to sue Utah, and then the issue would have to be decided about whether those marriages are void ab initio (from the beginning), or are now void (but were valid for a temporary period), or are voidable only on a case-by-case situation.

    All very complicated. There is probably Supreme Court precedent on analogous issues -- e.g., if a law is found to be illegal, and then if other parties (not involved in the case) take actions based on the law no longer being implemented, and then if no stay is granted, and then if the finding of illegality is reversed on appeal, THEN what happens to those actions that were taken while the law was not being implemented due to the ruling that it was not valid?

    Here's a simple analogy, less complicated than the Utah case: Suppose that a law says that a building license can't be granted to construct buildings on marsh lands, but then that law is found to be illegal and the parties that challenged it are allowed to construct a house on marsh land. If they actually build a house, but the appeals court finds that the the restriction on constructing buildings on marsh land is legal, there is little doubt that the parties to the lawsuit can be required to tear down the house. But if some other people were granted licenses to build on marsh lands during the period that the law was found illegal (and no stay was granted), could those people be required to tear down what they built -- even though they were not involved in the lawsuit?

    Yes, getting married is not exactly like constructing a house. But there are surely analogous cases that give some guidance here. Someone needs to do the legal research.

    Posted by: MiddleoftheRoader | Jan 2, 2014 6:08:24 PM


  20. Thanks @Ari... as others have noted the bets seem to be that Sotomayor will cut to the chase and just refer the matter to the full court - she has also requested a response be filed by Friday for the pro-equality side so looks like we aren't going to hear anything probably until next week. I would like to think the court will be non-political and do the right thing... but who knows...

    Posted by: Gerry | Jan 2, 2014 6:33:22 PM


  21. One thing overlooked is that Justice Sotomayor had the option of granting an interim stay pending receipt of the plaintiffs' response. She did not exercise that option thereby allowing marriages to continue AT LEAST through today and possibly through tomorrow as well, if not for a longer period of time.
    I could be wrong but it seems overwhelmingly likely to me that not only does Justice Sotomayor intend to refer the request to the entire Supreme Court, she also has a rather good handle on how they will rule and her belief is that the court will refuse to grant a stay. The only reason I can conceive that she'd be willing to let marriages continue even temporarily is that she thinks that the court will ultimately uphold Judge Shelby's decision either by ruling affirmatively or by refusing to grant cert if that is requested by the state.

    There has been a good deal of observation above about the eventuality that the Tenth Circuit COULD reverse Shelby's ruling and/or that the Supreme Court could eventually do so and for that reason, it would be wise to hold off on issuing marriage licenses until everything is resolved. Quite apart from the fact that Judge Shelby's decision seems rather clear-cut and unimpeachable, I don't see the inconveniences that couples might incur having to re-do their taxes (wills probably are more important in the ABSENCE of marriage equality than in the PRESENCE of marriage equality as a way of ensuring that property gets transferred as intended without spousal rights being available), these are in effect inconveniences, not harms. While the state of Utah might, in the highly unlikely event that it eventually prevails, pursue every couple that files their taxes jointly for filing fraudulent returns, that would be a lawsuit the state has no chance of winning as any couple choosing to take the route of filing jointly will have been acting in good faith and almost certainly on the advice of competent counsel. The most concrete harms imaginable to occur during the continued course of the litigation would accrue to those couples who lose the opportunity to marry because one of them dies while waiting for resolution, and the non-biological children of any of those potential spouses who, if their biological parent were to pass away in the interim, would not have certainty as to who would have the legal right and responsibility to care for them in that event. In addition, for whatever time it takes for all appeals to be exhausted, every single couple that desires to marry but is prevented from doing so, even if they are eventually able to get married, suffers a loss each day the are unable to exercise that right. Given how the courts have ruled in the past regarding marriage, it seems very likely to me that no stay could possibly be justified.

    Posted by: sfbob | Jan 2, 2014 7:07:46 PM


  22. Thank you for writing this. I agree with your conclusions. However, it is Judge Robert Shelby not Richard.

    Posted by: E Blake | Jan 2, 2014 7:56:15 PM


  23. @SFBOB - you make very logical points... hope you are correct!

    Posted by: Gerry | Jan 2, 2014 8:05:19 PM


  24. Post Windsor, every court case in the country has come to the same conclusion. Someone obviously clued Christie that he had not a leg to stand on. He folded. New Mexico Supreme Court was UNANIMOUS. Black in Ohio & Shelby in Utah came to the same conclusions on marriage rights through different aspects, in state & out of state.

    That short decisive statement from the 10th was a huge tell if they'd only paid attention, 'After ruling review no grounds for a stay'. Tenth Circuit Justices haven't been living under a rock since Prop 8 & Windsor. They've heard every inept argument & rebuttal for years on marriage equality and I'm pretty sure by now they see that there's simply no defensible position on LGBT marriage rights discrimination.

    How are they going to argue against this ...
    Kennedy ruling on Windsor:
    "States’ interest in defining and regulating the marital relation, subject to constitutional guarantees"
    "DOMA is unconsti­tutional as a deprivation of the liberty of the person pro­tected by the Fifth Amendment of the Constitution."

    You can replace the word DOMA with any of the 32 states laws (mini DOMA's) that ban same-sex marriage as Amendment 3 does here. Like they told Christie ... not a leg to stand on.

    One of the best facets of the Utah case happened because they forgot to ask for a stay initially. With no stay Shelby's ruling was in effect immediately and it was broadcast & reported not just in Utah but all over the country. What those news reports showed were everyday people in tears of joy finally getting the chance to participate in having their love & commitments & families legally recognized as equal. Just like everyone else.

    My guess is that Sotomayor declines to stay and that SCOTUS doesn't take it up. It runs it's fast-tracked course through the 10th and they uphold Shelby.

    Posted by: SERIOUSLY | Jan 2, 2014 8:42:56 PM


  25. There's no basis for a stay this time. The situation in California (invalidating Prop 8) means that Judge Shelby's ruling is grounded on clear legal precedent. Since that ruling has not yet translated to a 50-state marriage right, she will probably refer both the say and the case itself to the entire court.

    Posted by: Gay Guy | Jan 2, 2014 8:54:59 PM


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