Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Sonia Sotomayor | Supreme Court | Utah

Why There Should Be No Stay of Marriage Equality in Utah


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.

Feed This post's comment feed


  1. Another case involving Utah. A judge declares part of Utah polygamy ban unconstitutional. I think NOM's prediction has come true that gay marriage leads to polygamy. The Catholic Church seems to be silent on this. It would be funny to see two bigots involving themselves in a dynasty-like catfight.

    Posted by: simon | Jan 2, 2014 9:03:56 PM


    I'm just saying that is what their best options are. Not that they will work. If the appeal wins then most certainly all the marriages will be revoked. That's at least a valid legal reason. There are 4 different qualifiers that all must be met for an appeal and it isn't going to happen.

    Posted by: Richard | Jan 2, 2014 9:58:40 PM

  3. Judge Shelby's decision was very detailed, destroying the arguments with previous court reulings wich show the objections to be without merit and based on prejudice alone.

    A major difference with the birth control decision is, the stay does not prevent anyone from using birth control, only from having their employer pay for it. A stay on marriage would prevent same sex couples from getting married in the state, denying to them the same protections currently provided to others. They would clearly be harmed by denial of legal equality, while the state can show no harm beyond not being allowed to use popular prejudice to justify denial of equal legal treatment.

    Posted by: Dan | Jan 2, 2014 10:08:00 PM

  4. State DOMA laws aren't much different than the federal DOMA was.

    Justice Kennedy: "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from the Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved." (Windsor)

    Posted by: Dan | Jan 2, 2014 10:17:11 PM

  5. Ari,

    If the Supreme Court does deny a stay, can this be used a precedence for all other SSM cases to come? Will another federal court, say in Michigan, deny a stay because the Supremes already denied one for Utah?

    It's times like this I wish I had gone to law school.

    Posted by: Mike | Jan 2, 2014 10:58:39 PM

  6. Even if Utah's ban is upheld in the end, the marriages performed will be recognized. Even the original Prop-8 decision allowed for that. Also, when polygamy was outlawed in Utah, no existing polygamous marriages were nullified.

    Posted by: Gay Guy | Jan 3, 2014 7:09:45 AM

  7. Ari, can you comment on the relevance of 'animus' being important in Windsor but not discussed in this case in Judge Shelby's overturning the Utah laws?

    Posted by: bravo | Jan 3, 2014 10:03:09 AM

  8. No one here is addressing the issue of "irreperable" harm. Sure, there is a chance that Utah could win it's 10th Circuit appeal, and then they could lose on final appeal to the court of LAST resort. And it's clear from their stay request that they intend to "unwind" and void all gay marriages that have been performed to date. Even so, how how is that harm irreperable? Filing taxes, bank accounts,...all that can be undone...with pain and legal work to be sure, but it can be undone. Unlike an execution which can not be un done or "repaired". It's also incredulous that the state now pretends to have an interest in gay couples and the harm that it actually says it intends to cause. This is their argument: Your honor, you must issue a stay because we the state, intend to irreparably harm the plaintiffs and every currently legally married gay citizen by dissolving the marriages they entered in good faith. We intend to use unlimited tax funds and any and every method at our disposal to harm these couples, so you must protect them from us, the state, by issuing a stay. Should we the state loose at the 10th circuit, we have EVERY intention of continuing to pursue our course to harm these couples all the way to this (SCOTUS) court. That is their chief argument for the stay! It is incredulous. Their other chief argument is that they are just totally indignant that a Federal District Judge would presume to apply the constitution to Utah and invalidate their laws, constitutional or not. Justice Sotomayor may wish to make a stay decision on her own, however she may also realize that her decision will only be appealed as well, and may as well just nip these continuous appeals in the bud by bringing all 9 justices to bear. In that event, it will all rest again on Kennedy. However, recall that SCOTUS declined to hear an appeal on the merits of Washington DC's passage of marriage equality. The 9 may then toss the hot potato back to Sotomayor. It would seem to me that instead of wailing of their indignation, they, the state, should spend more time indicating exactly how Judge Shelby mis-applied points of law, and why they think a new panel of three new justices on the 10th will overturn his judgment. Should they loose thier battle on merits at the 10th, will they appeal to an enbanc court or skip and try their luck at SCOTUS?

    Posted by: Tony C | Jan 3, 2014 1:30:05 PM

  9. @Gay Guy
    You're being naive, or have not actually read the latest appeal for a stay in front of Justice Sotomayor. California and Utah are to totally different cases. In California, you have the state agreeing with the plaintiffs (Perry et al) that it's marriage ban was unconstitutional in light of the Federal Constitution. In California, both the Governor and AG found the CAconstitutional ban odious, un-constitutional and contrary to being Californian. In Utah, the state, with all the power of the governors office, just submitted a request for a stay, outlining how they would intend to harm married gay couples by unwinding their marriages. So your contention rests on mighty thin conjecture.

    Posted by: Tony C | Jan 3, 2014 2:06:12 PM

  10. The Mormons in Utah and CA eventually lost the Prop 8 fight in CA and will eventually
    lose this one too. Interesting twist of fate.

    Posted by: Homo Erectus | Jan 3, 2014 2:45:37 PM

  11. In refusing to grant a stay the 2nd time the 10th circuit said there was no hard done to the state by not having a stay AND UTAH had NOT shown that they would prevail on appeal. Very telling response.

    Posted by: onajrny | Jan 3, 2014 7:24:18 PM

  12. All this I might as well toss in my two cents, too. I think the fact that the 10th circuit court, and justice Sotomayor haven't granted stays is very telling. After all, stays are routinely granted when upon first blush it appears that the appellant has some good chance of prevailing. I don't think the State of Utah has much chance of prevailing. Their reasons used to demonstrate irreparable harm should they lose were pretty thin, and don't hold up to scrutiny.

    So..once it's settled that Gays can marry in Utah, they still can't have sex. The sodomy and fornication laws are still on the books, and anything other than penis-vagina sex within a married relationship is illegal. Oral and anal sex constitute sodomy in Utah. Goes for 'traditional' married couples as well..

    Posted by: Burt | Jan 4, 2014 7:47:58 AM

  13. Burt:
    You must be joking. You mean the Catholics don't jerk off?

    Posted by: simon | Jan 4, 2014 9:26:42 PM

  14. These noxious abhorrent hatefilled bigots are like the soldiers who stay in the jungle for decades after the war is over refusing to acknowledge they lost...........

    I have been looking over the results of Gay marriages in various states and as of yet I have not seen a single episode of:

    > Residents having to dodge lightning bolts as they run for their cars....

    > Plauges of locusts devouring the vegitation...

    > Teens enmasse siging up and hooking up on Grindr..........

    Instead loving couples in commited relationships are simply enjoying the EXACT SAME rights as hetrosexual couples have enjoyed for generations. And the states have seen tremendous tax revenue from the tremendous increase in business from those businesses that cater to the wedding trade..

    Because everyone knows we Gays just love to throw fabulous events! :p

    Posted by: PLAYS WELL WITH OTHERS | Jan 10, 2014 9:20:51 AM

  15. « 1 2

Post a comment


« «Linda Harvey's New Anti-gay Book Pulled from Amazon« «