No Rational Reason
December 20, 2013 1:44 PM   Subscribe

A federal judge has ruled Utah's Amendment 3 is unconstitutional.

A stay was not issued. Text of the ruling [PDF].
posted by msbutah (283 comments total) 30 users marked this as a favorite
 
Pretty sure at this point federal judges are just trying to fuck with their friends who have bet money on which state will be last to go for equality before the big nationwide ruling.
posted by jph at 1:45 PM on December 20, 2013 [36 favorites]


If appealed up to the Supreme Court, this could be the big nationwide ruling. The judge's decision argues that it is unconstitutional to forbid same-sex marriage anywhere in the United States, because it denies gay people due process and the equal protection of the laws.
posted by Holy Zarquon's Singing Fish at 1:47 PM on December 20, 2013 [37 favorites]


Page 32: Plaintiffs are ordinary citizens—business owners, teachers, and doctors—who wish to marry the persons they love. As discussed below, the State of Utah has not demonstrated a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry.
posted by roomthreeseventeen at 1:48 PM on December 20, 2013 [53 favorites]


I love the sounds of dominoes falling...
posted by scody at 1:48 PM on December 20, 2013 [32 favorites]


This is exactly what Utah deserves for the out-of-state money pushed into California trying to defeat same-sex marriage there. And this is exactly what the people of Utah deserve - to have the right to marry whomever they choose. (Court case on the NUMBER of people they can marry is still up in the air, isn't it?)
posted by caution live frogs at 1:49 PM on December 20, 2013 [45 favorites]


There are a lot of beautiful quotable pieces in that decision.

Of particular beauty to me is the bit on page 48 where Scalia's dissent in Lawrence vs. Texas is used to strengthen the argument that 'preserving the traditional definition of marriage' is bullshit.
posted by MCMikeNamara at 1:52 PM on December 20, 2013 [17 favorites]


I feel really embarrassed for all the states that will come after Utah. Like, you had your chance. You're now less progressive than Utah. Congratulations.
posted by stoneweaver at 1:53 PM on December 20, 2013 [117 favorites]


Some friends are at the county clerk's office now and they just got a license.
posted by msbutah at 1:54 PM on December 20, 2013 [62 favorites]


And immediately following on page 49 is this winner, emphasis mine:

Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so.

As they say, ZING!
posted by MCMikeNamara at 1:55 PM on December 20, 2013 [111 favorites]


So glad this was stated for the record:
"The court does not find the State’s argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens"


This will make it harder for the homophobes to create a legal-bullshit work-around.
posted by zarq at 1:55 PM on December 20, 2013 [84 favorites]


If appealed up to the Supreme Court, this could be the big nationwide ruling. The judge's decision argues that it is unconstitutional to forbid same-sex marriage anywhere in the United States, because it denies gay people due process and the equal protection of the laws."

It also does so while applying rational basis -- as opposed to strict scrutiny, which the 2nd circuit applied in Windsor (DOMA case), and which the SC refused to apply -- which means that it is a bit more friendly to Kennedy and the rest of the conservative court. It'll be interesting to see what the 10th Circuit does with it.
posted by likeatoaster at 1:55 PM on December 20, 2013 [1 favorite]


You're now less progressive than Utah. Congratulations.

Indiana is considering strengthening its existing gay marriage law with a constitutional amendment. Having lived here more than a decade, I suspect that the current legislature and governor would be proud to be known as less progressive than Utah.
posted by Gelatin at 1:56 PM on December 20, 2013 [1 favorite]


Oh, this sucks. Pennsylvania can't be after fucking Utah.

Oh, Okay. Congratulations, Utah.

But seriously. Utah?!?
posted by octothorpe at 1:56 PM on December 20, 2013 [3 favorites]


msbutah: congrats to your friends!
posted by scody at 1:56 PM on December 20, 2013 [1 favorite]


msbutah: "Some friends are at the county clerk's office now and they just got a license."

YAY! Congratulations!
posted by zarq at 1:57 PM on December 20, 2013 [1 favorite]


msbutah: "Some friends are at the county clerk's office now and they just got a license."

Oh man. For some reason, that made me feel all of the feels. Congrats!!!!
posted by schmod at 1:58 PM on December 20, 2013 [3 favorites]


"Some friends are at the county clerk's office now and they just got a license."

Where are husbands three and four?


(Sorry, couldn't resist. Sorry. Congrats to them!)
posted by oddman at 1:59 PM on December 20, 2013 [3 favorites]




Tonight I virtually buy all of Utah a vodka tonic with a shot of vodka on the side.
posted by Beardman at 1:59 PM on December 20, 2013 [6 favorites]


Indiana is considering strengthening its existing gay marriage law with a constitutional amendment. Having lived here more than a decade, I suspect that the current legislature and governor would be proud to be known as less progressive than Utah.

Life-long Hoosier here. My thinking is, with both New Mexico and Utah this week, rather than give our legislature pause, this will only embolden them to push through the amendment asap. Of course, it would still have to be voted on by the voters here, but I'm not entirely confident that my fellow Hoosiers would do the right thing and reject the amendment.
posted by Thorzdad at 2:01 PM on December 20, 2013 [3 favorites]


msbutah, FANTASTIC.
posted by roomthreeseventeen at 2:01 PM on December 20, 2013




Tonight I virtually buy all of Utah a vodka tonic with a shot of vodka on the side.

Isn't that still actually illegal?
posted by MCMikeNamara at 2:07 PM on December 20, 2013 [1 favorite]


Tonight, I buy all of Utah a coffee! Uh, virtually.
posted by dhartung at 2:15 PM on December 20, 2013 [4 favorites]


Gay Marriage in Utah.

Just say it out loud. You can't help but grin.
posted by Tomorrowful at 2:18 PM on December 20, 2013 [10 favorites]


WOO HOO!
posted by It's Raining Florence Henderson at 2:22 PM on December 20, 2013


Best opinion on this so far.
posted by MoonOrb at 2:22 PM on December 20, 2013


I can't even. Love.
posted by roomthreeseventeen at 2:23 PM on December 20, 2013 [10 favorites]


stoneweaver: I feel really embarrassed for all the states that will come after Utah. Like, you had your chance. You're now less progressive than Utah. Congratulations.

And you're years behind Iowa (though Iowa has a good bit of blue in it, vs none in Utah).
posted by filthy light thief at 2:25 PM on December 20, 2013


Come on, Wisconsin!
posted by desjardins at 2:26 PM on December 20, 2013 [4 favorites]


(Here's the New Mexico thread, if anyone missed it)
posted by filthy light thief at 2:30 PM on December 20, 2013


A Facebook friend just posted this status:
Marriage equality now legal in all four states where Mitt Romney owns homes.
posted by schmod at 2:31 PM on December 20, 2013 [122 favorites]


Predictably, talk radio is FROTHING MAD today, America is dying hellfire and brimstone etc etc

Also they're like "this whole Duck Dynasty thing isn't an attack on homosexuals, it's an attack on Christians" and then I started bleeding from the eyes and ears and had to pull over

Taking one for the team here guys
posted by jake at 2:36 PM on December 20, 2013 [5 favorites]


though Iowa has a good bit of blue in it, vs none in Utah

Hardly! According to a 2011 Public Policy Polling survey, if the 30% non-Mormon population of Utah were its own state, they'd approve of Barack Obama by 66%, vote for gay marriage by 63%, and be the bluest state in the country -- even more than Hawaii.

Cheers for Utah progressives -- they deserve a win.
posted by Rhaomi at 2:37 PM on December 20, 2013 [39 favorites]


All I know is that talking to relatives is going to be AWESOME this Christmas.
posted by Elementary Penguin at 2:38 PM on December 20, 2013 [7 favorites]


My father in law was urging my husband and I to move to Utah where SLC has domestic partnership. We declined, as that was not even close to the same thing legally.

Now I fear we will end up on a ranch in the middle of the desert gnashing our teeth over the lack of high speed Internet now that our excuse has evaporated.
posted by munchingzombie at 2:40 PM on December 20, 2013 [16 favorites]


Also they're like "this whole Duck Dynasty thing isn't an attack on homosexuals, it's an attack on Christians" and then I started bleeding from the eyes and ears and had to pull over

The Phil Robertson Challenge
posted by Blazecock Pileon at 2:43 PM on December 20, 2013 [4 favorites]


You're now less progressive than Utah. Congratulations.

Well, not really. This is a ruling against Utah.
posted by Sys Rq at 2:47 PM on December 20, 2013 [5 favorites]


msbutah: "Some friends are at the county clerk's office now and they just got a license."

That made me tear up. Congratulations to them!

This is wonderful news. I couldn't be happier.
posted by Dip Flash at 2:47 PM on December 20, 2013


I can't even. Love.

Great. Now I am now crying at my desk at work. This is the season!
posted by stoneweaver at 2:47 PM on December 20, 2013


I remember as a kid thinking that the mere thought of things like federally recognized gay marriage, and one hundred percent legalized marijuana were the deranged utopian fantasies of crystal clutching hippies who don't get out enough. Black president too, thought that would never ever fucking happen. Well, not in my lifetime anyways.

Sometimes it's nice to be proven wrong.
posted by mediocre at 2:50 PM on December 20, 2013 [28 favorites]


I can't think of a better Christmas presents for those folks. Totally crying at my desk at work.
posted by skycrashesdown at 2:55 PM on December 20, 2013 [1 favorite]


> Pennsylvania can't be after fucking Utah.

I would be inclined to express a similar sentiment, with Oregon in the place of Pennsylvania. But this was the result of litigation. When pressed to judge the law on its own merits, judges don't have much of a choice but to strike down "defense of marriage" type acts. If it was a matter of popular vote, I doubt Utah would have done it themselves. But human rights probably shouldn't be a matter of popular opinion.
posted by mediocre at 2:57 PM on December 20, 2013 [1 favorite]


Come on, Wisconsin!

Before Walker, i would have put money on us getting it before Minnesota, but now sadly, i'd say we get it when him and his cronies are done fighting tooth and nail. :P
posted by usagizero at 2:59 PM on December 20, 2013 [3 favorites]


That's one smart, sensible, nay WISE judge. Sure hope he's appointed, not elected!

(And I'm afraid I'm still betting on my own state of Virginia being in a race for last. Sigh.)
posted by easily confused at 2:59 PM on December 20, 2013 [1 favorite]


I guarantee you that Texas will be the last state to hold on to this outdated bullshit. Well, maybe if Wendy Davis gets elected this year it could change, but even then it would be a tough fight. Let's hope this goes to the supreme court and becomes the law of the land.
posted by Benway at 3:01 PM on December 20, 2013 [3 favorites]


Sure hope he's appointed, not elected!

Federal District Court judges are appointed and the Constitution grants them lifetime tenure as a separation-of-powers measure.
posted by Joey Buttafoucault at 3:04 PM on December 20, 2013 [4 favorites]


I think the last holdout would be a more backwater state like South Carolina. Texas has a lot of young college types, and the whole Austin region, who would campaign hard for it. South Carolina has.. not so much..
posted by mediocre at 3:04 PM on December 20, 2013


THANKS OBAMA.

(for appointing this activist judge)
posted by Etrigan at 3:08 PM on December 20, 2013 [18 favorites]


Amazing and awesome. I predict some awkwardness and drama at church this Sunday.
posted by The World Famous at 3:12 PM on December 20, 2013 [5 favorites]


I think the last holdout would be a more backwater state like South Carolina. Texas has a lot of young college types, and the whole Austin region, who would campaign hard for it. South Carolina has.. not so much..

You, sir, are wrong. I am proud to have served over a decade at the University of South Carolina which has had: a gay student body president, active offices for GLBT rights, and active student groups bringing awareness of LGBT issues to their fellow students. I venture to wager to that while those bass-ackwards boys up at Clemson cannot field a decent sports team, they have done no less in terms of respecting and educating their fellow students and citizens. There are some fine folks in any state, blue or red, who care about such things. To not give them credit for fighting the good fight is to miss the point of grassroots politics.
posted by 1f2frfbf at 3:17 PM on December 20, 2013 [18 favorites]


It's sort of misleading to talk about this as a reflection on Utah's political climate at all.

This sort of thing was exactly as likely to happen in Utah as anywhere else, because it has nothing to do with state level politics. The judge who made the ruling is federally appointed. If he'd been appointed to a district in Indiana instead of Utah, and this case had come up there instead of here, he'd presumably have made the same ruling.

The only decision that the state government gets to make in this sort of situation is "Do we appeal or not?" And the article says the Utah AG is planning on appealing.
posted by Now there are two. There are two _______. at 3:20 PM on December 20, 2013 [4 favorites]


I've a feeling this is the floodgate moment. National by 5 years, I'm calling it.
posted by edgeways at 3:20 PM on December 20, 2013 [6 favorites]


That said: WOOOOOOOOOOOOOOOOOOOOOO!
posted by Now there are two. There are two _______. at 3:20 PM on December 20, 2013


I predict some awkwardness and drama at church this Sunday.

Doesn't the LDS eventually follow, with a bit of delay? The Civil Rights Act was passed in 1964, and black people gained full privileges in 1978, so that was a delay of 14 years. Now, maybe gay civil rights are a trickier issue theologically - at least for some religions - so I don't know if it's comparable. But if it is, well, 2013 + 14 = 2027 is that the magic date for gay priesthood in the LDS?
posted by VikingSword at 3:24 PM on December 20, 2013


oh man, i might have just started a flame war, but i just congratulated utah on their progress on my facebook page. wonder what the strict mormon family will say about that...
posted by nadawi at 3:26 PM on December 20, 2013 [4 favorites]


Utah isn't more progressive than other states; the district court judge in the state is.
posted by jpe at 3:28 PM on December 20, 2013 [1 favorite]


regardless of how it came about - the fact of the matter is that when this is argued in other states, people will get to say, "come one, utah has gay marriage!" it being done by the courts and not through voting/the legislator doesn't make it any less of a win.
posted by nadawi at 3:30 PM on December 20, 2013 [7 favorites]


From J.Seth Anderson's twitter feed as they were waiting to find out if they could be married today:

Everyone in the office is so supportive.

That made me tear up. Yeah, it is possible. People can change and open their hearts.

I'm sitting at the Chipotle across from Southdale. It's all I can do to stop myself from jumping up and shouting, "Hey, two guys just got married in Utah! In fucking UTAH !!!"
posted by marsha56 at 3:31 PM on December 20, 2013 [7 favorites]


Doesn't the LDS eventually follow, with a bit of delay?

Yes, but it will take longer this time, primarily because of the increased administrative difficulty of adding same-sex marriage to LDS marriage cosmology. Removing polygamy wasn't that tricky (and some would argue that it wasn't actually removed). Adding same-sex spouses to the cosmology will be tricky. But I'm pretty confident that a room full of 5 or 10 really smart people could get it all worked out in an afternoon, so it should only take the LDS church 30 or 40 years.
posted by The World Famous at 3:35 PM on December 20, 2013 [8 favorites]


I've been so slammed at work this afternoon that when a (straight) co-worker friend said "So, Utah!" as I passed her office I was like, um, so, Utah? And she laughed. And then emailed me the live-tweet link.

So, Utah! Congrats!
posted by rtha at 3:40 PM on December 20, 2013 [2 favorites]


the article says the Utah AG is planning on appealing

Hmmm, that will be interesting to see. Right now I think it's hard to predict which way the Supremes would go on this issue. If there ever was an issue where you the writing is on the wall for which side history will condemn, this is it. Scalia and Thomas, obviously, aren't going to give a damn about that, but I could imagine Roberts thinking "do I really want to nail my colors to the mast of that sinking ship?" He'd know that pretty much every history of his court written in the future would hold that decision up as an example of egregious bigotry.

On the other hand, if the homophobes want a win on this issue, their window has to be closing.
posted by yoink at 3:42 PM on December 20, 2013 [1 favorite]


And Pennsylvania, though much if it is actually a lot like Alabama, is due soon to have its gay marriage ban struck down. The case is headed for federal court, the state Atty General refused to defend the state, the governors' office is defending and can't find its ass with a flashlight. The case is in discovery and the ACLU is complaining that the "Commonwealth" is demanding all sorts of inappropriate information, including "deeply personal information about the plaintiffs, including their children's parentage and whether they had previously engaged in heterosexual relationships."

We'll catch up to Utah some day.
posted by tommyD at 3:44 PM on December 20, 2013 [3 favorites]


Utah cast the vote which ended prohibition FWIW.
posted by brujita at 3:49 PM on December 20, 2013


Neighbors of ours just posted to Facebook that they saw New Mexico yesterday and decided that they just couldn't wait until Pennsylvania got its act together and drove over the border into Maryland to get married today.
posted by octothorpe at 3:57 PM on December 20, 2013 [2 favorites]


Let's assume a few things. Now, you're not going to agree with most of them, and I don't, necessarily, either. But let's just assume them anyway, just for fun.

1. Let's assume that God told the leaders of the LDS church to urge church members to support state constitutional amendments banning same-sex marriage. They don't allege that God told them that, instead relying entirely on the ridiculous premise that whatever they say is, by definition, God's will and word. But let's, for fun, assume God told them that.

2. And let's assume God told them, specifically, to urge church members to support both Prop 8 and Utah's constitutional amendment banning same-sex marriage. Again, they don't allege that God told them that, but let's just assume, for fun.

3. And let's assume not that God's necessarily omnicient, but at least close enough to omnicient to be pretty good at predicting what state and federal courts are going to do when Prop 8 and Utah's amendment are challenged on federal constitutional grounds. I realize I'm asking a lot of you atheists out there, but stick with me. This will be fun, I promise.

4. If we assume those three things, is it not pretty safe to conclude that God intentionally set out to get same-sex marriage legalized, and was using LDS church leaders' culture of bigotry to get them to play right into that plan and set the wheels in motion to accomplish exactly what those same leaders thought they were trying to stop?

I mean, the alternative explanation to which I, personally, subscribe is that LDS church leaders (who, again, do not allege that God ever told anyone not to have same-sex marriage) based their beliefs and teachings about same-sex marriage on the foolish traditions they grew up with (they even use the word "traditional" to describe their position, after all) and then, because of the power and authority structure of the church, just assumed that whatever they strongly believed must be God's will, and that their arrogant certainty on the matter blinded them to pretty glaring logical, legal, and strategic problems with their plan.

But I'll bet green money that, 50 years from now, Mormon apologists will be arguing that this was all God's plan, as evidenced by the spectacular failure of the whole state constitutional amendment strategy.
posted by The World Famous at 3:57 PM on December 20, 2013 [20 favorites]


That is one of the best opinions I have ever read. (At the very least, it must be the first one that made me cry.) Solidly reasoned and plainly written. His conclusion was just perfect.

And as a Unitarian Universalist I appreciated his specific defense of my "religious freedom."
posted by AgentRocket at 3:58 PM on December 20, 2013 [9 favorites]


Ah, I love it. Sitting in my living room with a glass of wine crying over metafilter threads about same sex marriage being legalized in new states = one of my favorite pastimes.
posted by something something at 4:05 PM on December 20, 2013 [9 favorites]


The ruling is great and gets extra points for using Scalia's dissenting opinion against him.
posted by Joey Michaels at 4:06 PM on December 20, 2013 [3 favorites]


Update: the Utah Attorney General's office is requesting an emergency stay from the 10th Court of Appeals.
posted by Tomorrowful at 4:12 PM on December 20, 2013


"Emergency"! These people are warped.
posted by Flunkie at 4:20 PM on December 20, 2013 [2 favorites]


If they don't characterize it as an emergency, they cannot, by definition, show that they will be irreparably harmed if the stay does not issue.

(Though how they'll be harmed I'm sure I'll never know. Oh noes! All that extra revenue! If they couldn't even show a rational basis, they certainly cannot show that they'll be harmed. If the circuit court issues the stay, it will be doing so only out of political exigency, and not because of any merit of the state's petition. And I say that without even looking at the petition.)
posted by The World Famous at 4:22 PM on December 20, 2013 [5 favorites]


And now, having read the Utah Attorney General's official statement:
The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit. The state is requesting an emergency stay pending the filing of an appeal. The Attorney General’s Office will continue reviewing the ruling in detail until an appeal is filed to support the constitutional amendment passed by the citizens of Utah.
They better think of a better argument than that for their appeal. Maybe they can start by actually reading the decision.
posted by The World Famous at 4:30 PM on December 20, 2013 [1 favorite]


I do love the bit about how marriage equality = religious freedom. We need to keep hammering on that one.
posted by jb at 4:30 PM on December 20, 2013 [9 favorites]


it being done by the courts and not through voting/the legislator doesn't make it any less of a win.

FWIW, I agree with this 100%. Not trying to do the "using the courts is bad for PR" thing. Let's win this fucker any way we can, any place we can.

posted by Now there are two. There are two _______. at 4:33 PM on December 20, 2013 [2 favorites]


The 700 couples who have been married in NJ since October 21 are pretty happy about that court ruling.
posted by roomthreeseventeen at 4:35 PM on December 20, 2013


It's better to win through the courts. This is a right, not just some agreed-upon thing people choose to vote for.
posted by The World Famous at 4:35 PM on December 20, 2013 [33 favorites]


Wow, when marriage equality finally came to the Mountain Time Zone, it came big.

Colorado's supposed to be the progressive state in the intermountain West, and here we are, with just our civil unions to show for it. (Yes, I know this was a federal decision -- just saying that i feels weird to be behind NM and, for *&%$#! sake, Utah.)
posted by heurtebise at 4:37 PM on December 20, 2013 [2 favorites]


I am LOVING watching the local Utah TV station KSTU online. The sputtering by some of the pundits this afternoon has been awesome.

Watch online here!
posted by Asparagirl at 4:46 PM on December 20, 2013


Yes, but it will take longer this time, primarily because of the increased administrative difficulty of adding same-sex marriage to LDS marriage cosmology. Removing polygamy wasn't that tricky (and some would argue that it wasn't actually removed). Adding same-sex spouses to the cosmology will be tricky. But I'm pretty confident that a room full of 5 or 10 really smart people could get it all worked out in an afternoon, so it should only take the LDS church 30 or 40 years.

Can I humblebrag that I'm the genealogy web geek who made the pull request that added domestic partnership, civil unions, and transsexuals' legal change of sex to the GEDCOM X codebase earlier this year? So at least their genealogy programs will be fine to handle it when their cosmology eventually catches up.
posted by Asparagirl at 4:52 PM on December 20, 2013 [33 favorites]


This is a test of the Emergency Bro Caste System. Bro Casters, in cooperation with the FCC and other federal, state and local authorities have developed this system to keep you informed in the event of a moral panic emergency. If this had been an actual moral panic emergency, you would have been instructed where to tune in your area for your local FOX News affiliate.
posted by It's Raining Florence Henderson at 4:54 PM on December 20, 2013 [3 favorites]


They better think of a better argument than that for their appeal. Maybe they can start by actually reading the decision.

IANAL, but is their argument that there's no precedent, and therefore this can't be a precedent? Did I translate the legalese correctly?
posted by rtha at 5:08 PM on December 20, 2013


Their argument is, "No fair! I'm telling!"
posted by It's Raining Florence Henderson at 5:12 PM on December 20, 2013 [2 favorites]


see i knew that polygamy would lead to gay marriage
posted by klangklangston at 5:13 PM on December 20, 2013 [27 favorites]


IANAL, but is their argument that there's no precedent, and therefore this can't be a precedent? Did I translate the legalese correctly?

Their argument is that the court overstepped its bounds by trying to create a "fundamental right to same-sex marriage" that has never been recognized in the 10th Circuit. But the argument has a fatal flaw: The court made no such ruling. The court here did not rule that same-sex marriage is a fundamental right. It held - as courts have for decades - that marriage is a fundamental right and rejected outright the state's fallacious argument that same-sex marriage is a different right than opposite-sex marriage. The state is also barking up the wrong tree if it thinks emphasizing a split in the circuits is going to do anything other than hasten the nationwide recognition of the right.

From page 28 of the decision:
The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond. This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference. And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.
While it was assumed until recently that a person could only share an intimate emotional bond and develop a family with a person of the opposite sex, the realization that this assumption is false does not change the underlying right. It merely changes the result when the court applies that right to the facts before it. Applying that right to these Plaintiffs, the court finds that the Constitution protects their right to marry a person of the same sex to the same degree that the Constitution protects the right of heterosexual individuals to marry a person of the opposite sex.
And then, just in case someone in LDS church leadership was asleep or wasn't reading between the lines, the court sent what I can only interpret as a direct, explicit message to the church and the state as a whole:
Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the State, must adapt to this changed understanding.
(Emphasis added.)
posted by The World Famous at 5:14 PM on December 20, 2013 [17 favorites]


I'm sad/mad Utah beat Oregon to this. Thankfully, on the Oregon front, there are domestic partnerships and they recognize out of state marriages. There is also an in-progress supreme court case challenging the dumb 2004 proposition and a ballot measure for November 2014 so I think we'll catch up soon.
posted by mathowie at 5:17 PM on December 20, 2013 [1 favorite]


while i wish everyone would just catch up already, i am sort of tickled by the idea of people from oregon taking a gay destination wedding to utah.
posted by nadawi at 5:21 PM on December 20, 2013 [16 favorites]


Asparagirl, ugh, GEDCOM. Some software of mine will read and write a subset of that wretched format. Are they going to move to some sort of markup-based format, like XML, for the files one of these days?
posted by wintermind at 5:26 PM on December 20, 2013


Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the State, must adapt to this changed understanding.

Interesting quote, and it reminds me of an excellent commencement address that David Souter gave several years ago at Harvard:
But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either...

The judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see ... Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.
Souter's entire remarks are very much worth reading or listening to in their entirety. I have no idea whether these remarks represent a widespread school of constitutional philosophy, but I think his philosophy makes a lot of sense and I am encouraged to see similar substance from other judges.
posted by compartment at 5:28 PM on December 20, 2013 [4 favorites]


THANKS OBAMA.

(for appointing this activist judge)


Interestingly, President Obama appointed Judge Shelby to the bench with the fervent support of Utah Senators Orrin Hatch and Mike Lee (both Republicans, the latter a Tea Party bulldog).

Delicious.
posted by duffell at 5:35 PM on December 20, 2013 [11 favorites]


The 10th circuit beat the 9th to issuing a no rational basis ruling on a challenge to a law enacted by a state within their jurisdiction. Utah did not beat any other state. Utah is appealing. The state remains an enemy of freedom as a legal agent. There is no reason to praise or revise one's view of the state government or cultural majority in the state.
posted by spitbull at 5:39 PM on December 20, 2013 [1 favorite]


Are they going to move to some sort of markup-based format, like XML, for the files one of these days?

Unfortunately, we're all still kind of stuck with GEDCOM, warts and all. Worst of all, every family tree genealogy program outputs in slightly wrong and quirky and even incompatible ways; there wasn't even any comprehensive open source parser available for .GED files until about two years ago. GEDCOM X is an attempt to standardize things and do it all better. But -- wait, this is actually relevant to this conversation about same-sex marriage you guys! -- GEDCOM X, despite being funded and built by FamilySearch (the LDS Church) does not fully get used by them. That is, not all of the features get used. That's because GEDCOM X has features like "parents-and-child relationships" as opposed to an explicit recognition of husband-wife-and-child relationships. Right now, FamilySearch's relatively new online product Family Tree does not accept same-sex marriages or other marriage-like relationships, nor can you input same-sex parents of a child. GEDCOM X does, but GEDCOM X as used in Family Tree does not. When I first heard about that, as a member of the Family Search Developers Network, I was incensed. I wrote a scathing e-mail about it to the listserve earlier this year, and I'm personally proud that I managed to not mention politics or personal opinions whatsoever, but rather explained in detail about why that refusal is such a bad choice for formalized source-centric genealogy, for historical records preservation, and for future open development around the Church's otherwise-excellent technology stack. (For context, I am not LDS and I won second place in their RootsTech development programming contest two years ago for a records management web publishing system -- which incidentally MetaFilter helped me name!)
posted by Asparagirl at 5:40 PM on December 20, 2013 [13 favorites]


The Boston Globe just reported that “Ryan Bruckman, a spokesman for the attorney general’s office…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.”
posted by roomthreeseventeen at 5:40 PM on December 20, 2013 [4 favorites]


The Utah state government, which is notoriously corrupt, has other distractions. Hell, the attorney general is pretty new on the job.
posted by spitbull at 5:41 PM on December 20, 2013 [1 favorite]


Considering the church had two men arrested for a brief kiss just a few years ago, I'm going to have to wait and see before I can celebrate.

I did get a call from my older gay friend in Utah tonight, who broke the news to me. He never thought he'd live to see the day. He's cautiously optimistic, but overjoyed.

But that pernicious church will fight this with all it's might and money, that you can be sure of.
posted by Catblack at 5:47 PM on December 20, 2013


Thanks, TWF!
posted by rtha at 5:50 PM on December 20, 2013


AWESOME. Suck it, Mormon bigots.
posted by MeanwhileBackAtTheRanch at 5:51 PM on December 20, 2013 [3 favorites]


>Not fair! Don't lump the mormons in one big chunk. They are more diverse than you think.
posted by hot_monster at 5:55 PM on December 20, 2013 [7 favorites]


that could just mean bigots who are mormon, not that all mormons are bigots. i'd hope that people understand what a religion strongly suggests and what individuals believe have a huge amount of variance no matter the religion, and that we have pro-marriage equality mormons who are also mefites.
posted by nadawi at 5:58 PM on December 20, 2013 [10 favorites]


Wow. Gays can marry in Utah before they can in Illinois.

The phrase we use when playing Euchre when this sort of thing happens is "%}^+# trumped my ace!"
posted by eriko at 6:03 PM on December 20, 2013 [4 favorites]


♥ ♥ ♥
And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.

posted by lalex at 6:07 PM on December 20, 2013 [4 favorites]


Wow. Gays can marry in Utah before they can in Illinois.

Actually, couples began getting marred in Illinois a few weeks ago. At the moment, it is restricted to couples where at least one partner has a life threatening illness, but the marriages are happening.
posted by roomthreeseventeen at 6:11 PM on December 20, 2013


Mormons are not the LDS leadership. The people of Utah are not the government of Utah. The only group in common we need to hold in contempt are bigots; be they Mormon bigots or Utah bigots or atheist bigots or Massachusetts bigots.
posted by munchingzombie at 6:24 PM on December 20, 2013 [12 favorites]


The World Famous: "4. If we assume those three things, is it not pretty safe to conclude that God intentionally set out to get same-sex marriage legalized, and was using LDS church leaders' culture of bigotry to get them to play right into that plan and set the wheels in motion to accomplish exactly what those same leaders thought they were trying to stop?"

Sounds Machiavellian. Is God devious, manipulative and dishonest, causing unnecessary damage in the process?
posted by krinklyfig at 6:28 PM on December 20, 2013 [1 favorite]


Is God devious, manipulative and dishonest, causing unnecessary damage in the process?

ask job.
posted by nadawi at 6:29 PM on December 20, 2013 [13 favorites]


Is God devious, manipulative and dishonest, causing unnecessary damage in the process?

Man created God in his own image. So: Yes.
posted by It's Raining Florence Henderson at 6:33 PM on December 20, 2013 [8 favorites]


I mean, I think it's great that Utah has legalized gay marriage, or rather that the courts did. But ascribing it to a divine plan seems a bit of a stretch. It sounds like a clever theological rationalization, but the amount of damage the church did to itself and more importantly to others makes it seem like there is no justification and no excuse for their actions, and not anything as absurd as a divine plan could explain it. The church got their ass handed to them, and it was the right outcome, but if there's a lesson to impart it's about humility and compassion, which the church could easily practice right about now, though instead they choose to fight and cause more suffering.
posted by krinklyfig at 6:35 PM on December 20, 2013


Sounds Machiavellian. Is God devious, manipulative and dishonest, causing unnecessary damage in the process?

If you assume what I posited, then I think that would be the case. But, as I noted, neither I nor the Mormon church believe my just for fun assumptions are true.
posted by The World Famous at 6:36 PM on December 20, 2013 [2 favorites]


(I'm getting the impression that krinklyfig didn't catch my point above. Oh well.)
posted by The World Famous at 6:37 PM on December 20, 2013 [1 favorite]


TWF - i thought you were pretty clear...
posted by nadawi at 6:39 PM on December 20, 2013


The World Famous: "If you assume what I posited, then I think that would be the case. But, as I noted, neither I nor the Mormon church believe my just for fun assumptions are true."

It's pretty much the image of God as was imparted to me by many religious people I knew growing up, with different predictions of outcomes. I don't have any sympathy for the LDS right now, though I do have compassion for members who are conflicted and who are culturally locked in to it.
posted by krinklyfig at 6:49 PM on December 20, 2013


The World Famous: But I'll bet green money that, 50 years from now, Mormon apologists will be arguing that this was all God's plan, as evidenced by the spectacular failure of the whole state constitutional amendment strategy.

I am of the belief that you feel this is a safe bet because, as I have come to see your comments on any front page post even tangentially related to the LDS church, you are well versed in the thinking of a Mormon apologist.

You've said many times that the LDS church is changing for the better from within. I put the challenge firmly at your feet: Speak up about the moral rightness of this ruling to your bishop, your stake president, the quorum of the 70, even to the prophet of the church himself. I'd make a safer bet that they'll spend an obscene amount of church money on getting this ruling struck down.
posted by Catblack at 7:48 PM on December 20, 2013 [4 favorites]


unless i'm misreading you - that's a really shitty and fighty comment, Catblack. i have mountains of problems with the lds church (having grown up in it and left it) and i've never found TWF to be anything besides open and forthcoming in discussing the religion as a whole and his personal feelings within it. what he discusses with his leaders is none of your business and what the church decides to do with its power has nothing to do with him.
posted by nadawi at 7:56 PM on December 20, 2013 [14 favorites]


[This needs to not become a game of "Let's use TWS as a proxy for an entire religion" again, folks. Thank you. ]
posted by restless_nomad (staff) at 8:02 PM on December 20, 2013 [12 favorites]




I guess that means these guys can have a local wedding. Good deal.
posted by alms at 8:22 PM on December 20, 2013 [2 favorites]


Sitting in my living room with a glass of wine crying over metafilter threads about same sex marriage...

May your joyous and drunken sobbing continue ceaselessly until all 50 dominoes have fallen.

Let's get on with it, everyone else. I'm not getting any younger and I need to live to see the day. That couple with their certificate are absolutley adorable, and I want to hug them both. The peace & contentment that I feel when I hold my wife in my arms is a feeling that I wish every person on earth has a right to feel someday, and someday fucking soon.

Bless this man who became a judge and saw & applied justice.
posted by Devils Rancher at 8:56 PM on December 20, 2013 [2 favorites]


Just yesterday I was looking at the Mefi Wiki Marriage Equality thread page because I wanted a count on how many states allowed gay marriage. Like lots of people here, I get incredibly happy every time marriage is made legal/sane in a new state.

I just can't believe that it happened in Utah before Pennsylvania (my state).
posted by elvissa at 9:29 PM on December 20, 2013 [1 favorite]


... I'm the genealogy web geek who made the pull request that added domestic partnership, civil unions, and transsexuals' legal change of sex to the GEDCOM X codebase ...

Once again, MetaFilter, you're my kind of people!
posted by benito.strauss at 9:44 PM on December 20, 2013 [5 favorites]


Including my "not until June except for special exceptions" home state of Illinois, there are now 18 states (plus DC) where marriage equality is the law of the land. In case you've lost count and weren't sure. Which is where I was just now. Which is its own kind of amazing.
posted by MCMikeNamara at 9:56 PM on December 20, 2013 [5 favorites]


I guarantee you that Texas will be the last state to hold on to this outdated bullshit.
Agreed from the trenches. Texas will have to be dragged kicking and screaming into the 19th century.
posted by byanyothername at 10:23 PM on December 20, 2013 [1 favorite]


Mississippi and Alabama before Texas? Are you sure about that?
posted by Area Man at 10:37 PM on December 20, 2013 [1 favorite]


"It's better to win through the courts. This is a right, not just some agreed-upon thing people choose to vote for."

Depends on how you construct your rights theory — you could moot it as better to demonstrate popular support as rights are subject to more interpretation than ballot victories (and ballot victories influence judges too).

The only group in common we need to hold in contempt are bigots; be they Mormon bigots or Utah bigots or atheist bigots or Massachusetts bigots."

Or Illinois Nazis.
posted by klangklangston at 11:02 PM on December 20, 2013 [1 favorite]


I think "last State to capitulate" is an erroneous argument to make. There will be a few more States to come into the fold by legislative or judicial or even perhaps by popular demand, then all the rest will be enfolded by single or multiple federal or SCOTUS rulings. So, there will be no single 'last' state, but a group of them. The shame of States like WI and PA will not be being 'the last', but being unable to get their act together before being told yes, you are politically just as bigoted as TX and MS and now the courts must treat you like children in this regard.
posted by edgeways at 11:21 PM on December 20, 2013 [9 favorites]


oh fuck I've been watching this happen in the USA for the past few years and it's been wonderful.

but Utah? seriously? I am beset by all the feels and some motherfucker is chopping a million onions next to me.

Not even joking. Tears streaming down my face right now.
posted by feckless fecal fear mongering at 2:07 AM on December 21, 2013 [1 favorite]


After reading about Shelby, I am just completely flabbergasted by the balls on the governor, calling him an 'activist judge'.
posted by ftm at 3:57 AM on December 21, 2013


I can't wait to hear what Orson Scott Card thinks of this.
posted by maurice at 5:16 AM on December 21, 2013 [1 favorite]


octothorpe: "Neighbors of ours just posted to Facebook that they saw New Mexico yesterday and decided that they just couldn't wait until Pennsylvania got its act together and drove over the border into Maryland to get married today."

I should add that they've been a couple for over thirty years, so it's been a long wait.
posted by octothorpe at 5:17 AM on December 21, 2013 [1 favorite]


From the appeal for emergency stay: The district court's injunction substantially upsets the status quo.

LOL.
posted by roomthreeseventeen at 6:48 AM on December 21, 2013 [1 favorite]


LOL indeed. Politically I can see why they had to file the appeal, but I hope it is rejected with the derision it deserves.
posted by Dip Flash at 7:20 AM on December 21, 2013


I can't wait to hear what Orson Scott Card thinks of this.

I could wait an entire lifetime before hearing another word from another Mormon bigot on this subject, honestly. If they can just leave us alone that would be just swell, frankly.
posted by Blazecock Pileon at 7:26 AM on December 21, 2013 [5 favorites]


Right now I think it's hard to predict which way the Supremes would go on this issue.

I disagree, since they've already toppled DOMA and this is the obvious extension of that case. Kagan, Sotomayor, Breyer, Ginsburg and Kennedy in favor, Scalia, Thomas, Alito and Roberts against. Kennedy will write the opinion, like he did in Romer v. Evans, Lawrence v. Texas, and Windsor v. United States. Roberts and Scalia will write separate dissents where they agree with each other but use different reasoning.
posted by bile and syntax at 7:39 AM on December 21, 2013 [4 favorites]


The district court's injunction substantially upsets the status quo.

What they fail to realize is that the status is NOT quo.
posted by jcreigh at 8:05 AM on December 21, 2013 [3 favorites]


But isn't the extension of Windsor, which left state laws intact, to uphold the rights of states to choose? If they were going to strike it down nationwide, why didn't they do it then? Seems like if there's a common thread to the recent SCOTUS decisions it's to uphold states' rights.

On the other hand, the reason DOMA was struck down was that it violated the constitutional right to equal protection, and I don't see how this is any different.
posted by ultraviolet catastrophe at 8:06 AM on December 21, 2013


I can't wait to hear what Orson Scott Card thinks of this.I can't wait to hear what Orson Scott Card thinks of this.

That was a joke, right? You know exactly what that gigantic sad closet case thinks about this. I got dragged by a friend to go see Ender's Game, and it was openly and creepily homoerotic. That scene in the shower was totally unnecessary, and entirely reminiscent of high school queer kid about to have some sort of unpleasant encounter with a closeted jock. So much about that movie was so creepy. I feel sorry for Card, but as Blazecock said I really give no fucks at all what yet another bigot thinks about us being treated like human beings.
posted by feckless fecal fear mongering at 8:20 AM on December 21, 2013 [3 favorites]


State laws weren't being challenged in Windsor, just the constitutionality of DOMA. The Supreme Court didn't have to address state laws, so they didn't.
posted by bile and syntax at 8:21 AM on December 21, 2013


But couldn't they have issued a broader ruling and struck down state laws if they wanted to?
posted by ultraviolet catastrophe at 8:28 AM on December 21, 2013


They had the chance to address state laws in Hollingsworth, but they punted and decided based on standing instead. Which wasn't entirely unproductive - they didn't go nearly as far as this ruling does, of course, but they did rule that same-sex marriage doesn't "injure" straight people by its very existence.
posted by Holy Zarquon's Singing Fish at 8:29 AM on December 21, 2013 [1 favorite]


So, the state I now live in --- Alaska--- was the first to pass an amendment to the (typically pretty good) state constitution banning same-sex marriage. And given that everything I vote for fails at the ballot box, I don't see that changing at the state-wide level.

So, for example, if this ruling gets appealed up to the Supreme Court, and the Supreme Court rules in favor of same-sex marriage, does that mean that all of the state-level constitutional amendments become null and void?

Obviously, I apparently don't understand how this all works.
posted by leahwrenn at 9:18 AM on December 21, 2013


But couldn't they have issued a broader ruling and struck down state laws if they wanted to?

Windsor wasn't a challenge about state law, it was a challenge about federal law. So no: state laws were not part of that case.

Generally though, the Supreme Court doesn't like deciding anything it doesn't have to decide. This can be frustrating, but at the same time, once the constitutional precedent for something is set it is hard to change and we don't know what's going to happen in the future. So if they can avoid deciding something, they usually do. It would be nice to have this wrapped up - I was hoping it would get wrapped up in the early 90s with the Hawaii and Alaska challenges, before DOMA passed - but I'd rather have it go slowly than get messed up.
posted by bile and syntax at 9:27 AM on December 21, 2013 [2 favorites]


leahwrenn--probably, given the nature of this ruling. The previous S Ct ruling were on narrower issues where the Court could avoid making such a sweeping determination. But it depends on what issue ultimately makes it up to the S Ct for their review.
posted by MoonOrb at 9:28 AM on December 21, 2013


There's no possible standing issue here; the plaintiffs are directly harmed by the state amendment and Utah isn't going to abandon its anti-gay measure like California did - not in the next year, anyway (maybe in five or ten, the way the winds have shifted). So if the Supreme Court does take this case, and they will most definitely have the opportunity, we'll get a definitive ruling on the constitutionality of gay marriage bans.
posted by Holy Zarquon's Singing Fish at 9:52 AM on December 21, 2013


Aw. Seth and Michael received congratulations from (among many others) k.d. lang. I don't know why that made me get all teary-eyed/giddy again, but it did.

Also, state senator Jim Dabakis married his partner, Stephen Justeson, after a 27-year wait!

More here: Salt Lake County offices see a crush of same-sex marriages
posted by scody at 10:16 AM on December 21, 2013 [1 favorite]


One reason the LDS Church is opposed, their own articles of faith dictate they are subject to the rule of kings, and governments. So if same sex marriage is law, or allowed by law, they have to honor it. I doubt they have to perform those marriages, or that those marriages will happen in their temples, or they will condone it among their own. The Governor is getting in to it as well, and he has bees in his man-bonnet to get after this. Problem is he has to find one honest man in his government with links to the law. The whole AG office past and present is going down, they just have a stand in at this time, it is an elected office. The gov ranted about "activist judge" as a part of his obligatory huffing and puffing with regard to this issue. Pretty soon we will be able to experience freedom of some sorts in Utah, as long as we chew our air in the winter, like good girls and boys, and agree to do nothing about it.
posted by Oyéah at 1:14 PM on December 21, 2013 [1 favorite]


My favorite quote about this so far has been "Gay men have been marrying in Utah for years, but now they can actually marry each other."

I was at The Desert Edge, a local restaurant/pub in Salt Lake City at around 5:30 yesterday. There was a raucous, laughing group of people, and we slowly realized it was a party with two men who'd just gotten married. They were posing for photos and showing off their marriage license. At one point, someone tapped their glass and whistled, and the whole restaurant went silent, and the two men grabbed eachother and kissed. The entire restaurant erupted in cheers and applause.

I have never been so proud of my hometown.
posted by OrangeDrink at 1:15 PM on December 21, 2013 [20 favorites]


(And I'm afraid I'm still betting on my own state of Virginia being in a race for last. Sigh.)

We in Florida will be determined to protect you from being last.
posted by notreally at 1:28 PM on December 21, 2013 [1 favorite]


I was at The Desert Edge, a local restaurant/pub in Salt Lake City at around 5:30 yesterday. There was a raucous, laughing group of people, and we slowly realized it was a party with two men who'd just gotten married. They were posing for photos and showing off their marriage license. At one point, someone tapped their glass and whistled, and the whole restaurant went silent, and the two men grabbed eachother and kissed. The entire restaurant erupted in cheers and applause.

I'm not even going to pretend it's an onion or something in my eye. Just tears of real emotion. Thanks! *snif* *wipes cheeks*
posted by hippybear at 3:19 PM on December 21, 2013 [1 favorite]


As some have pointed out above, Utah certainly has its share of corrupt and embarrassing politicians and other public officials. That being said, how about a shout out for Sim Gill, the Salt Lake County District Attorney. He is a breath of fresh air in the greater stink, and wasting no time in getting the first marriage licenses issued is only one of many awesome things he has done.

He is also a treat to follow on facebook sometimes...a mixture of politics and philosophy so different than the usual talking points one usually hears from politicians:

Between the individual and the politician is a history of interaction during which there is a negotiated acquiescence of personal accountabilities from both sides. We accept the clown as a serious contender. This is our sin. The harsh truth however is that both in the process and in the end it is the individual citizen who is the tragic sacrifice. The individual cannot escape its existential self where the politician escapes the consequences of their errors all the time. At the time of political accountability the politician is more shadow than substance. More clown than hero.

And the warmest congratulations to my friends who were among the first to get married yesterday.
posted by freejinn at 4:02 PM on December 21, 2013 [2 favorites]


Joyous wedding photos! Get your joyous wedding photos here!
posted by scody at 4:18 PM on December 21, 2013 [3 favorites]


More photos!
posted by scody at 4:34 PM on December 21, 2013 [1 favorite]


I've just uploaded four long clips from yesterday afternoon's local Utah news (KSTU, Fox 13 in Salt Lake City) to the Internet Archive, in case anyone wants to watch the whiplash between exciting on-the-scene reporting from the marriages (including interviews with the happy couples) and slightly stunned and sputtering "what does this all mean" commentary in the studio.

Here's clips 1, 2, 3, and 4. Clips 1 and 2 have some audio-visual synchronization problems part-way through, alas.

My favorite bit is about one and a half minutes into clip #2, where the talking head actually asks the legal analyst about what this all means for brothers and sisters getting married, or first cousins marrying, or people with intellectual disabilities, or "incompatible with bloodtypes" [sic].

(Beyond the eugenics issue, I guess he didn't know that first cousin marriage is, in fact, already legal in about sixteen states, including Utah in some cases. Just goes to underscore even more how unfair it is that same-sex marriage is still restricted! And personally, coming from an inbred shtetl background, cousin marriage basically was my ancestors' version of "traditional marriage", and my husband's family too, so I'll thank him to lay off.)
posted by Asparagirl at 4:48 PM on December 21, 2013 [4 favorites]


"Incompatible with bloodtypes"? What does that even mean? OH NOES, THE O-NEGATIVES ARE MARRYING A-POSITIVES
posted by scody at 5:27 PM on December 21, 2013 [4 favorites]


"Incompatible with bloodtypes"? What does that even mean?

Something about vampires, surely, right?
posted by MoonOrb at 5:39 PM on December 21, 2013


"Can a Lawful Good cleric now marry a Chaotic Evil assassin? We'll have analysis next."
posted by Chrysostom at 6:21 PM on December 21, 2013 [12 favorites]


Ugh, no. The kids will wind up Druids or some shit.
posted by Etrigan at 6:37 PM on December 21, 2013 [2 favorites]


Better druids than monks.
posted by Holy Zarquon's Singing Fish at 7:06 PM on December 21, 2013 [1 favorite]


You only say that because you haven't gotten a Vibrating Palm lately.
posted by Etrigan at 7:07 PM on December 21, 2013 [2 favorites]


I love these wedding pictures. More, please!
posted by maurice at 3:30 AM on December 22, 2013


You only say that because you haven't gotten a Vibrating Palm lately.

Who does, though, after they get married?
posted by Elementary Penguin at 6:25 AM on December 22, 2013 [3 favorites]


"But isn't the extension of Windsor, which left state laws intact, to uphold the rights of states to choose? If they were going to strike it down nationwide, why didn't they do it then? Seems like if there's a common thread to the recent SCOTUS decisions it's to uphold states' rights."

This is kind of confused in several ways — Windsor did involve states' rights a little bit, in that it was premised on the ability of states to enact legal marriages among their citizens, which has been traditionally the magisteria of the states, but since that wasn't really at question, the SCOTUS wouldn't have ruled on it. It was whether the Federal Government could discriminate by treating some forms of legal marriage as different than others. And they can't.

As to state rights, there's a long, long, long precedent that says basically there's a fundamental right to marry as part of an individual's freedom to order their life as they choose, and that is administered through the states. So they can put some restrictions on marriage, but they have to be the least possible to achieve the state's objective of (I forget the formal phrase) promoting healthy families or some such. Just like how states can regulate speech in different ways, but it still has to be tied to a legitimate state interest and done in as minimally invasive method as possible.

Further, one of the findings of Hollingsworth (though not precedent outside of the Ninth) is that there's also a due process/equal protection claim that comes from treating different couples differently. So while the state can make laws to restrict marriage, they should apply to all couples in a reasonably equal manner.

As a practical matter, we'll probably see state-by-state progress, but that's not so much because of "states' rights" as it is because of the practical realities of changing a bunch of differently constructed laws in a bunch of different places.
posted by klangklangston at 1:01 PM on December 22, 2013 [2 favorites]


Breaking!!! The 10th circuit has DENIED a temporary stay.
posted by roomthreeseventeen at 5:54 PM on December 22, 2013 [8 favorites]


That's awesome.

What does it mean they do next? They seek leave to appeal that ruling to SCOTUS? Or is that not allowed?
posted by feckless fecal fear mongering at 6:11 PM on December 22, 2013


Well, Judge Shelby is still going to hear a motion for stay tomorrow at 9am, but I can't imagine he's going to grant it if it wasn't already included in the original order AND the 10th Circuit has already denied the stay.

The 10th Circuit has not denied the appeal, only the motion to stop marriages pending the resolution of the appeal. There is no word on when the appeal will be scheduled for a hearing.
posted by roomthreeseventeen at 6:22 PM on December 22, 2013


But I don't know if you can appeal a motion to SCOTUS if an appeal is still pending at a lower court.
posted by roomthreeseventeen at 6:23 PM on December 22, 2013


Defendants-Appellants acknowledge that they have not addressed, let alone satisfied, the factors that must be established to be entitled to a stay pending appeal. They state that they do not address the 10th Cir. R. 8.1 criteria because they do not seek a stay pending appeal, but rather a stay pending the district court’s decision on their stay motion. But the appellate and local rules contemplate only a motion for stay pending appeal, and the requirements are clear. Because the motion before us does not meet the requirements of the Federal or local appellate rules governing a request for a stay, we deny the motion. This denial is without prejudice should Defendants-Appellants file a motion for stay pending appeal that complies with Fed. R. App. P. 8 and 10th Cir. R. 8.1

Oh WTF weird.
posted by Now there are two. There are two _______. at 9:36 PM on December 22, 2013


So it looks like Utah could still ask for a stay pending appeal, and still be granted one. What the 10th circuit denied was apparently some weird piece of fuckery that was apparently totally outside the rules anyway.
posted by Now there are two. There are two _______. at 9:39 PM on December 22, 2013


Lovely story of the couple who got married in their pajamas on Friday afternoon after the ruling.
posted by roomthreeseventeen at 6:51 AM on December 23, 2013 [4 favorites]


So is this likely to turn out to be a situation like California? People are married, then they're not, then they are again?
posted by feckless fecal fear mongering at 7:21 AM on December 23, 2013


Latest news from Teh Twitterz says that Utah County and Cache County are illegally refusing to issue any licenses at the moment. The hearing for the stay is starting now, and has a media blackout until it is over. The KSTU / Fox 13 local news livestream link I posted upthread is working again, if you want to see live or slightly tape-delayed coverage. Looks like they're covering the story almost exclusively. Right now they're showing some surprisingly gentle and supportive words from various clergy from various Utah denominations.
posted by Asparagirl at 8:12 AM on December 23, 2013


Any suggestions about who to follow on Twitter for news about this, Asparagirl?
posted by Elementary Penguin at 8:18 AM on December 23, 2013


Salt Lake Tribune reporter @jimmycdii on Twitter is onsite in SLC and has a lot of photos and video:
"The beginning of the line for same sex marriages in SLC. It's a lot longer than this shows. http://t.co/Vedhjzlmid "
posted by Asparagirl at 8:22 AM on December 23, 2013 [1 favorite]


It's been mentionted several times in the thread, but I didn't get a chance to read the decision myself just now and the bit with Scalia is very nice. Is hate-quoting a word?

In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
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 samesex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks omitted).

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.


I want to live in a world where Scalia's opinions are regularly and brazenly used to support things the man himself despises. I want it so bad.

And I want his feelings to be hurt every time it happens.
posted by jsturgill at 8:23 AM on December 23, 2013 [2 favorites]


Step one: teach Antonin Scalia to have feelings.
posted by Holy Zarquon's Singing Fish at 8:29 AM on December 23, 2013 [1 favorite]




The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.

Zing!
posted by jsturgill at 8:33 AM on December 23, 2013 [3 favorites]


Props to Summit County, which is live-tweeting their morning with photos of their government workers happily helping the people waiting in line there (see @SummitCountyUT).
posted by Asparagirl at 8:43 AM on December 23, 2013 [3 favorites]


The 10th Circuit has denied the stay.

Excellent. Can this decision be appealed?
posted by feckless fecal fear mongering at 8:43 AM on December 23, 2013


(I don't want it to be appealed I'm just wondering what the next move from the Asshole Brigade will be)

and by Asshole Brigade I mean the bigots, not my fellow queers

I'll show myself out

posted by feckless fecal fear mongering at 8:46 AM on December 23, 2013


More from Twitter:

"Box Elder [County] has had no gay couples attempt to get a license but Clerk wouldn't give if they tried. Two sheriffs stand near doors. #utpol
7:43am - 23 Dec 13"
posted by Asparagirl at 8:52 AM on December 23, 2013


I want it to be appealed. Because this is a beautiful ruling that would be difficult to overturn. This is a ruling that stands a chance of being law of the land if ends up at the Supreme Court. The NM AG has already said they won't be looking for the decision to be overturned, so we need Utah to pursue it if we're going to get a nice lovely blanket ruling and get everyone marriage rights.
posted by stoneweaver at 8:53 AM on December 23, 2013 [1 favorite]


via Twitter, Shelby has also denied the stay.
posted by roomthreeseventeen at 8:55 AM on December 23, 2013


the stay being denied is just about paperwork and procedure though, yeah? basically the court said "this isn't the right procedure - go do it right and bring it back and we can talk about it"?
posted by nadawi at 8:58 AM on December 23, 2013


"Box Elder [County] has had no gay couples attempt to get a license but Clerk wouldn't give if they tried. Two sheriffs stand near doors. #utpol
7:43am - 23 Dec 13"


How the fuck is it even remotely legal for them to refuse to obey the dictates of the Court? Why are there no contempt charges happening to these complete douches?
posted by feckless fecal fear mongering at 9:00 AM on December 23, 2013 [1 favorite]


I'm straight but would be willing to try to get gay married in Box Elder County, assuming that meant the people who refused me that right were terminated and/or fined and/or thrown in jail at some later point in the future.

I need a plane ticket, a partner, and an iron-clad prenup, stat!
posted by jsturgill at 9:05 AM on December 23, 2013 [6 favorites]


it's super frustrating that they are basically threatening people who want to get married, but i think it's important to note that box elder county has 50,000 people and probably isn't having a rush on marriage licenses today, gay or straight.
posted by nadawi at 9:05 AM on December 23, 2013


Ugh, apparently the guy I was following on Twitter had no idea what he was talking about. Sorry.
posted by roomthreeseventeen at 9:17 AM on December 23, 2013


I need a plane ticket, a partner, and an iron-clad prenup, stat!

I live near an airport and am on vacation from work this week. Think my wife would mind a one-day divorce?

She probably would.
posted by Holy Zarquon's Singing Fish at 9:18 AM on December 23, 2013


Well there's the rub, no? The obvious protest solution is for lots of people to head to that clerk and demand lots of same-sex marriage licences.

Which would play right into the "WAAAH THEY'RE DEVALUING MARRIAGE" canard the bigots like to pull out. Catch-22.
posted by feckless fecal fear mongering at 9:20 AM on December 23, 2013


KSL5 TV reports federal judge to make a ruling on stay of same sex marriage in Utah in 15 minutes...
posted by roomthreeseventeen at 9:29 AM on December 23, 2013


Box Elder County: "Two sheriffs stand near doors"
and
Cache county refuses to even open their office until they hear news on the stay

...and on the other hand you have...

"Summit Co. Clerk's office rocking it with no lines. Claudia McMullin is giving hugs and Mayor Williams is officiating. #MarriageEquality" <--- this from an official gov't Twitter account
and
"Caller on @DougWrightShow rprts str8 cpls hndng cupcakes at county bldgs 4 all new marriages saying #EveryoneNeedsCake on their wedding day"

In summary, Utah is a land of contrasts.
posted by Asparagirl at 9:59 AM on December 23, 2013 [5 favorites]


Well there's the rub, no? The obvious protest solution is for lots of people to head to that clerk and demand lots of same-sex marriage licences.

Which would play right into the "WAAAH THEY'RE DEVALUING MARRIAGE" canard the bigots like to pull out. Catch-22.


Not really. Lots and lots of gay people getting married when finally allowed to is actually, like, the perfect response.
posted by jsturgill at 10:00 AM on December 23, 2013


Lots and lots of gay people getting married when finally allowed to is actually, like, the perfect response.

Well, yes.

But note that I said 'people,' not 'gay people.' By which I meant allies and supporters and stuff. I feel I didn't explain my point well.
posted by feckless fecal fear mongering at 10:01 AM on December 23, 2013


Fair point. I suppose the ideal protest would be to have a bunch of meaningless heterosexual marriages alongside the recognition of years-long, deeply felt gay relationships.
posted by Holy Zarquon's Singing Fish at 10:13 AM on December 23, 2013 [2 favorites]


STAY DENIED. MARRY ON!
posted by Asparagirl at 10:18 AM on December 23, 2013 [5 favorites]


State of Utah now appealing to the 10th U.S. Circuit Court of Appeals in Denver. No timeline on if or when they will hear the appeal.

So, MARRY ON...but quickly, just in case.
posted by Asparagirl at 10:41 AM on December 23, 2013


Metafilter: apparently the guy I was following on Twitter had no idea what he was talking about.
posted by Chrysostom at 10:48 AM on December 23, 2013 [2 favorites]


Here's something from Ohio:
A federal judge ordered Ohio authorities today to recognize gay marriages on death certificates, saying that the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.
It features more hate-quoting of Scalia:
Black cited a prediction by U.S. Supreme Court Justice Antonin Scalia, who wrote in a strong dissenting opinion in June that the court majority’s decision to strike down part of an anti-gay marriage law would lead to a rash of state challenges.

Black said the prediction came true and now the lower courts must apply the high court’s ruling.
posted by Elementary Penguin at 10:50 AM on December 23, 2013 [2 favorites]


From @hunterschwarz on Twitter: "More guys named Spencer, Tanner, Parker, Hunter, Stone, Braxton, Brayden and Mason were gay married today than any other day ever."
posted by Asparagirl at 11:18 AM on December 23, 2013 [7 favorites]


The Utah County clerk is holding out, refusing to issue marriage licenses to same-sex couples! Old excuse was that they were waiting to hear results from the stay, new excuse is that they're waiting to hear results from the appeal of the stay and/or appeal of the original Shelby ruling to the 10th U.S. Circuit Court of Appeals in Denver. And God only knows how long that would be, could be months.

Which means we've got a stand-off in Utah County.

For the record, in addition to being a dick move, this is also a Class A Misdemeanor. Think anyone will try to charge him or his office?
posted by Asparagirl at 11:30 AM on December 23, 2013


cache county is still closed as well. can't find any clarification on box elder.
posted by nadawi at 11:32 AM on December 23, 2013


sadly, looks like to box elder story is being taken over by the fact that the county clerk was pretty grossly threatened over the phone.
posted by nadawi at 11:34 AM on December 23, 2013


State of Utah now appealing to the 10th U.S. Circuit Court of Appeals in Denver. No timeline on if or when they will hear the appeal.

Federal judges hate to work over the holidays (seriously: statistically, case throughput falls off a cliff in December). I wouldn't be surprised if the 10th Circuit doesn't resolve the issue until January.
posted by jedicus at 11:39 AM on December 23, 2013


State of Utah now appealing to the 10th U.S. Circuit Court of Appeals in Denver. No timeline on if or when they will hear the appeal.

Federal judges hate to work over the holidays (seriously: statistically, case throughput falls off a cliff in December). I wouldn't be surprised if the 10th Circuit doesn't resolve the issue until January.


Given what else becomes legal in Denver on January 1st, I wouldn't be surprised if the 10th Circuit's decision is, "Whatever, man."
posted by Etrigan at 11:45 AM on December 23, 2013 [3 favorites]


but, they could grant a stay before finding on the appeal, yeah? wasn't that the hiccup before - that shelby hadn't ruled on the stay so the 10th circuit couldn't rule on the stay - except now shelby has ruled so now they can rule too if they're presented with it again...at least that's how i read the refusal of stays linked upthread.
posted by nadawi at 11:50 AM on December 23, 2013


Oh shit, as if Utah didn't have enough news today (marriage equality, old AG out for corruption, new AG named), there are now reports of an avalanche at the Alta ski resort.
posted by Asparagirl at 12:05 PM on December 23, 2013




but, they could grant a stay before finding on the appeal, yeah?

That's definitely true, but I'm suggesting that not even that may happen before January.
posted by jedicus at 12:29 PM on December 23, 2013


Boy Scouts deliver pizza for Salt Lake County Clerks while they continue processing marriage licenses.

Mind blown.


These goddamn onions I tell you
posted by feckless fecal fear mongering at 12:40 PM on December 23, 2013


Boy Scouts deliver pizza for Salt Lake County Clerks while they continue processing marriage licenses.

To connect the dots for those who don't follow such things: The Church of Jesus Christ of Latter-Day Saints (a.k.a. the Mormon church) has been hugely into Scouting from the get-go, to the point that they're the 800-pound gorilla in the Boy Scouts of America (like how the Texas Board of Education has outsized influence on textbook publishers). The recent pushback against allowing out gay kids and adults in the BSA? That's mostly the LDS church wielding its influence. The fact that any troop is willing to do this in Utah is a pretty good indicator that we have reached a societal tipping point.
posted by Etrigan at 12:43 PM on December 23, 2013 [2 favorites]


I'm guessing that's not an LDS ward scout troop, though.
posted by The World Famous at 12:55 PM on December 23, 2013


No, but just the fact that they're going out there in uniform rather than succumbing to any fear of being ostracized for it is a big step. They know that the weight of public opinion is behind them, and any harrumphing that the local council (which is almost certainly heavily, if not purely, manned by ideologically pure LDSers in good standing) may do won't hurt them.
posted by Etrigan at 1:02 PM on December 23, 2013 [2 favorites]


Well one kid is wearing a rainbow kerchief, which could symbolize many different things but given the context probably symbolizes just exactly what you'd guess it does.
posted by benito.strauss at 1:08 PM on December 23, 2013 [1 favorite]


"I suppose the ideal protest would be to have a bunch of meaningless heterosexual marriages alongside the recognition of years-long, deeply felt gay relationships."

QUICK TO THE BRITNEY SIGNAL
posted by klangklangston at 1:15 PM on December 23, 2013 [5 favorites]


TWF - i had the same reaction - not a mormon troop, but in uniform, in utah, they're making a statement. and i'm grinning from ear to ear.
posted by nadawi at 1:20 PM on December 23, 2013 [4 favorites]


Aw yisss, these nice ladies (who have seven children, because Utah) have filed suit against the Utah County clerk who refused to issue them a marriage license them today. Lawsuit will be delivered by County Constable momentarily, as per @EricEthington's Twitter feed.
posted by Asparagirl at 3:24 PM on December 23, 2013 [5 favorites]


Hooray for those lovely women, sticking up for their LEGAL right to be married.
posted by roomthreeseventeen at 3:41 PM on December 23, 2013 [1 favorite]


via Ben Winslow: Plaintiff's lawyer Peggy Tomsic tells me briefings/arguments in #Amendment3 appeal likely by March/April.
posted by roomthreeseventeen at 3:50 PM on December 23, 2013 [1 favorite]




MoonOrb, it's important to remember that the Ohio ruling ONLY applies to death certificates. It absolutely does not say Ohio must recognize out of state marriages for other purposes, although I bet that's where it's leading.
posted by roomthreeseventeen at 5:13 AM on December 24, 2013


True, although it is hard to imagine how that holding could be interpreted to mean anything else. What would be the rationale for applying it only to the ability to have your marriage recognized only after your spouse has died? But strictly speaking the judge decided only the issue before him, which was regarding death certificates. One could argue that short of a ruling that same sex marriage bans are unconstitutional-and thus can be entered into anywhere- if the Supreme Court were to uphold this decision, it would be almost as impactful. This way a couple would need only travel to a state with marriage equality to have the service performed; upon returning home their marriage would be valid. Obviously for several reasons it would be more desirable for the Court to rule on full marriage equality, but I could perhaps see the Court taking up only this issue as a sort of judicial compromise.
posted by MoonOrb at 8:40 AM on December 24, 2013


10th Circuit Denies Stay. Happy Christmas Eve everybody!
posted by freejinn at 5:11 PM on December 24, 2013 [4 favorites]


Because each circuit court is assigned to a Supreme Court justice, Utah will be appealing to Justice Sonia Sotomayor

WELP
posted by Holy Zarquon's Singing Fish at 7:58 PM on December 24, 2013 [4 favorites]


(That is just for their appeal of the order denying a stay - the inevitable appeal of the Tenth Circuit's ruling in the actual case will of course go to the full Supreme Court)
posted by Holy Zarquon's Singing Fish at 7:59 PM on December 24, 2013


The comments in freejinn's are amazing.
posted by rtha at 9:11 PM on December 24, 2013 [1 favorite]


Indiana Finds It’s Not So Easy to Buck Gay Marriage Trend

"As lawmakers prepare to return for a new legislative session in January, it is an especially awkward spot for Republicans, who dominate both chambers of the General Assembly. With an election year ahead and the risk of primaries in May, the issue is pitting socially conservative groups, who are urging a constitutional ban, against sometime allies in the state’s business community, who say a ban could cause Indiana economic harm.

Few Republicans now seem eager to talk about the issue, and some legislative aides said it was not entirely certain who would formally file the legislation in January."
posted by rtha at 10:28 AM on December 25, 2013 [4 favorites]




The last of the Utah counties that were holding out on issuing marriage licenses to same-sex couples reversed course Thursday and decided to hand out licenses to all eligible applicants.

It's the rational decision on their part -- if marriage equality is overturned, then all those licenses are void anyway; if it's not, they won't be sued.

Sometimes, just following orders is the smart play.
posted by Etrigan at 5:43 AM on December 27, 2013




if marriage equality is overturned, then all those licenses are void anyway

That isn't what happened in California. All legally issued marriage licenses remained valid even after Prop 8 passed, which is part of what helped the Prop 8 trial in court, because it established two classes of same-sex couples -- those who had received the legal right to marry, and those who were forbidden it.

Is there a reason why those licenses would be void in UT when they were not in CA?
posted by hippybear at 6:25 PM on December 27, 2013


if marriage equality is overturned, then all those licenses are void anyway

That isn't what happened in California. All legally issued marriage licenses remained valid even after Prop 8 passed, which is part of what helped the Prop 8 trial in court, because it established two classes of same-sex couples -- those who had received the legal right to marry, and those who were forbidden it.

Is there a reason why those licenses would be void in UT when they were not in CA?


That is the reason. The Prop 8 precedent clearly means that Utah either gets to overturn marriage equality entirely and retroactively, or essentially doesn't get to overturn it at all.
posted by Etrigan at 7:05 PM on December 27, 2013


Also, a law rejecting a court ruling is a very different beast from an appellate ruling that overturns a lower court's decision. The California same-sex marriage decision was perfectly valid under the old law; what stopped it was that the law changed. But if this ruling gets overturned, then it was never a correct interpretation of the law in the first place.
posted by Holy Zarquon's Singing Fish at 7:23 PM on December 27, 2013 [2 favorites]


Yeah, to me it sounds more like what could happen is what happened to the Winter of Love (2004) San Francisco gay marriages - they were determined to *not* have been legal under then-current law, and so that summer those of us who got gay-married in February 2004 got a letter from the state saying "Yeah, you're not married, you never were married." It sucked.

2008 was different; when we got (re)hitched that June, it was legal to do so. Prop 8's passing couldn't go back and retcon them into not having been legal, so we stayed married. That, too, sucked - special rights are not all they're cracked up to be.
posted by rtha at 7:37 PM on December 27, 2013 [2 favorites]


Well, it could have been retroactive, it just wasn't. Mainly because it was drafted by people who are, in every sense of the word, terrible.
posted by Holy Zarquon's Singing Fish at 7:47 PM on December 27, 2013




I realize this may sound silly, but is it possible that the incompetence is (partly) on purpose? They know they're on the losing side (and/or there are sympathizers in the office), so may as well make a cock-up out of it? I'm not articulating well but I hope someone gets what I mean.
posted by feckless fecal fear mongering at 8:52 AM on December 28, 2013


I think it's more just that the office is in total disarray.
posted by Chrysostom at 9:01 AM on December 28, 2013


Yeah, I'd bet that "not getting impeached or indicted" was higher on their list of priorities than crafting a workable appeal. Can't say I'm crying over it.
posted by rtha at 10:45 AM on December 28, 2013


It's Over:
Since the Supreme Court ruling in June, the writing has been on the wall for banning of marriage rights for gay and lesbian couples in the United States. Since June the number of states with marriage equality has jumped from 12 to 18. But last week's lower court decisions in Utah and Ohio leave little doubt that the political fight over gay marriage is now essentially over and that gay marriage will be the law of the land in every state in the country in the pretty near future.

----

I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don't want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it's all but certain it's still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.
posted by octothorpe at 1:39 PM on December 28, 2013 [3 favorites]




Well, fuck: @AP BREAKING: Supreme Court puts gay marriage on hold in Utah

Text of the order here (PDF).
posted by zombieflanders at 7:45 AM on January 6, 2014


As much as I want to see people getting married, that's probably the right call. This appeal is going to last a long long time and there's no way that a decision overturning the district court would let the marriages stand. They'd be in limbo for years.
posted by Holy Zarquon's Singing Fish at 7:53 AM on January 6, 2014 [1 favorite]


does this nullify the existing marriages or just halt people getting more?
posted by nadawi at 8:04 AM on January 6, 2014


Halts people getting more.

NYTimes:
Judge Shelby’s decision made Utah the 18th state, along with the District of Columbia, to allow same-sex marriages, and many hundreds of gay and lesbian couples have married there in the intervening weeks. Should a higher court ultimately reverse Judge Shelby’s ruling, it is not clear what would happen to those marriages.

In their Supreme Court brief, Utah officials said Judge Shelby’s decision should be stayed “to minimize the enormous disruption to the state and its citizens of potentially having to ‘unwind’ thousands of same-sex marriages.”

posted by zarq at 8:14 AM on January 6, 2014


"In their Supreme Court brief, Utah officials said Judge Shelby’s decision should be stayed “to minimize the enormous disruption to the state and its citizens of potentially having to ‘unwind’ thousands of same-sex marriages.”"

Remind me again which side is trying to break up families and destroy marriages here....
posted by schmod at 9:05 AM on January 6, 2014 [4 favorites]


Utah’s Novel Argument: Banning Same-Sex Marriage Encourages ‘Diversity’ In Parenting
[They're] "focus[ing] on the supposed superiority of opposite-sex parenting, citing the fraudulent anti-gay claims of researchers Mark Regnerus, Loren Marks, and Douglas Allen, as well irrelevant studies by David Popenoe and the non-profit Child Trends, conflating “fatherless” families with same-sex parenting though the research does not address the latter whatsoever."

posted by zarq at 9:47 AM on January 6, 2014


What the fucking fuck. This is not how I wanted to start the most depressing day of the year.
posted by stoneweaver at 10:00 AM on January 6, 2014


Yeah, people who got gay-married can stay married during this stay and all the wrangling that follows, according to my lawyer colleague who is following various 10th Circuit stuff closely.

She just sent me this link, which I haven't read all of yet, but which says in part:
One open question this does leave, of course, is the status of the 900 or so same-sex couples who took advantage of the nearly two week period during which same-sex marriage was legal in Utah. The answer to that question is that we don’t know yet. I would think that, for the moment at least, those marriages will be seen as being legal and valid given Judge Shelby’s Order, but there will be an obvious conflict if the 10th Circuit, or the Supreme Court, ultimately ends up holding that Utah’s ban is in fact permissible under the Constitution. At that point, it would presumably be up to either Judge Shelby and the 10th Circuit or, more likely, the state courts in Utah, to determine what the status of these marriages might be. Looking at this as an abstract issue, it strikes me that the marriages ought to be seen as valid regardless of what ultimately happens to Utah’s law in the Courts since they got married during a period when a Court of competent jurisdiction had ruled that they had a right to do so. Of course, hopefully that won’t be an issue and Utah’s law will be struck down. In that case, the marriages that took place during the past two weeks will be as valid as those that occur after a final decision in this matter.
posted by rtha at 10:04 AM on January 6, 2014 [2 favorites]


Oh pooh.

It also puts a darker shade on the couples who were streaming to have marriages performed immediately after the first ruling. I just looked at it and imagined them thinking "Oh yay, everyone's so happy let's just go do it now and join the celebration.". I hadn't thought about the idea "Quick, let's do it now before they take it away."
posted by benito.strauss at 10:55 AM on January 6, 2014


Dammit, we really need a case to go before the SCOTUS, like Loving v. Virginia, which would wipe away all of this petty, sexist, homophobic bullshit. Ban anti-gay marriage laws across the US and that would (hopefully) be the end of all of this incredibly frustrating and unfair legislation. 900 couples are literally going to be kept in limbo by this stay who won't know if their marriages will be recognized / legitimized. Thousands of other couples won't be able to legally marry in their home state until it's lifted. It's cruelty: wave the possibility that they might be considered equal to the majority by their government in front of all those people and then take it away -- all because some homophobic bigots are so petty and insecure about their religious beliefs that they're threatened by the very existence of gay marriage.

This has continued to happen throughout the history of the United States. Women's suffrage. Civil Rights. Interracial marriage and segregation. All saw a number of states granting and/or disenfranchising specific groups of people of rights granted to the majority, until the Supreme Court stepped in and said, "Stop discriminating, you assholes." There has to be a better way.
posted by zarq at 11:23 AM on January 6, 2014 [4 favorites]


zarq: "There has to be a better way."

Find better Americans to populate the country?
posted by schmod at 11:48 AM on January 6, 2014 [1 favorite]


schmod: " Find better Americans to populate the country?"

In all seriousness, perhaps getting ENDA passed would be a good start? If we establish a legislative precedent that declares GLBT people a protected class from employment discrimination, then creating bulletproof legislation which discriminates against them in other ways might become harder.
posted by zarq at 11:56 AM on January 6, 2014


Dammit, we really need a case to go before the SCOTUS, like Loving v. Virginia, which would wipe away all of this petty, sexist, homophobic bullshit.

Absolutely. And I really hope it's this one, because whatever the case is that finally goes to the Supreme Court, it's going to start out just like this one has. And I'd rather people only have to go through this crap once.
posted by Holy Zarquon's Singing Fish at 12:19 PM on January 6, 2014 [2 favorites]


Women's suffrage. Civil Rights. Interracial marriage and segregation. All saw a number of states granting and/or disenfranchising specific groups of people of rights granted to the majority, until the Supreme Court stepped in and said, "Stop discriminating, you assholes."

Women's suffrage?
posted by DevilsAdvocate at 2:37 PM on January 6, 2014


Forget it, he's rolling.
posted by Holy Zarquon's Singing Fish at 2:40 PM on January 6, 2014 [5 favorites]


DevilsAdvocate: "Women's suffrage?"

Actually, yes. Women were given the right to vote in (ironically) Utah in the 1870's, and then it was taken away. I don't remember all the details but there was initially concern that Utah women would abolish polygamy if allowed to vote. When they did gain the right, they voted for polygamy, and then Congress disenfranchised them.

Prior to the passage of the Nineteenth Amendment, a handful of states gave women voting rights, including Colorado and Wyoming.
posted by zarq at 2:54 PM on January 6, 2014


Prior to the passage of the Nineteenth Amendment, a handful of states gave women voting rights, including Colorado and Wyoming.

Wyoming also had the first woman governor (Nellie Tayloe Ross, 1925) and the first woman juror (Eliza Stewart Boyd, 1870).

Come on, Equality State! Get back on the right side of history!

posted by scody at 3:14 PM on January 6, 2014 [1 favorite]


Women were given the right to vote in (ironically) Utah in the 1870's, and then it was taken away.

growing up my mormon leaders spun that as the mormons being the "real" definition of feminists, and that womens rights soared under polygamy - they also cited a (maybe made up? i never researched it) stat about how because of polygamy mormons had the highest percentage of women with college degrees in the mid to late 1800s. `
posted by nadawi at 4:41 PM on January 6, 2014


You learn something new every day, I guess. I didn't know that the adoption of the Nineteenth Amendment was a SCOTUS action.

Less snarkily: Certainly, Supreme Court decisions are one way in which rights are recognized, but we should not make the mistake of thinking it is the only way—women's suffrage is a demonstration that it is not the only way—lest we despair when a SCOTUS decision fails to recognize a certain right.
posted by DevilsAdvocate at 1:27 PM on January 7, 2014 [1 favorite]


women's suffrage is a demonstration that it is not the only way

The thing about SCOTUS decisions is they typically apply to the entire country, consistently and universally. Universal suffrage simply wouldn't have been possible without a SCOTUS decision. The ability to vote and be represented in government is itself a form of power: we vote for people who promote our interests and safeguard our rights, Likewise, the right of women to choose whether or not they will have an abortion -- the power of body autonomy, could only have been granted universally by the Supreme Court. It needed to be imposed, or a number of states would have continued to force women to carry their babies to term, regardless of risk or consequence.

If being treated equally to your peers is a human right then it seems unfair to do it piecemeal.
posted by zarq at 9:54 AM on January 8, 2014


The state will not recognize same-sex marriages performed before the stay.
Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.
posted by Holy Zarquon's Singing Fish at 10:06 AM on January 8, 2014


So, do people get an automatic refund on the money they spend on marriage licensees?
posted by edgeways at 10:44 AM on January 8, 2014


Apologies in advance to any friends of mine who might, without my knowledge, be acting as legal counsel to the State of Utah in some capacity - either in the AG's office or otherwise. But I have to say that the Utah state government apparently has, bar none, the most completely and thoroughly incompetent lawyers in the universe.

That purported letter from the Governor's Chief of Staff to the Cabinet is so idiotic that I'd wonder if it's even real if I didn't have enough experience dealing with Utah to know that yes, it can be both real and that stupid.
posted by The World Famous at 10:49 AM on January 8, 2014 [6 favorites]


Can you explain that a bit more? It looks dumb and discriminatory on its face, especially given the experience of Californian couples married during the 173 days, but I just don't know enough about how stays function when there's a conflict between federal and state law to understand the depths of the stupidity. I do know that the stay was granted late apparently because the Utah attorney general's office failed to do the pro forma work of requesting a stay should the judgment have gone against them, which it did, making them look like they were wildly overconfident.
posted by klangklangston at 12:43 PM on January 8, 2014


I had a ton written here, but I don't have time to proofread it or edit, and I don't want to just post a wall of rambling. So here are a few quick thoughts:

So from now on, according to the Governor's office, whenever someone in Utah applies for or does anything related to any state service where marital status is a question, the state is going to start asking every single person "are you married or same-sex married?" Guess how well that's going to go over in a state where even the conservative Mormon population is starting to turn toward strongly opposing such a distinction and where LGBT advocates are some of the most fierce you'll find anywhere.

- What are those state officials going to do when people married to someone of the opposite sex start refusing to answer that illegal question?
- What if they don't believe the applicant is telling the truth about the sex of his or her spouse?
- Are they going to demand medical verification of spousal sex from everyone in the state who seeks any government services where marital status is one of the boxes you have to check? How well will that go over?
- How is the Utah AG going to react when faced with a class action brought by opposite-sex couples who were illegally denied state services because they refused to answer an illegal question?

And that's not even getting to the more meaty issues, such as the fact that the Governor's office memo refers to "individuals . . . availing themselves of state services related to same-sex marital status," when, under both the court's decision and Utah law, there is no such thing as "same-sex marital status" or state services related to same-sex marital status, but only "marital status" and state services related to marital status, and the Governor's memo expressly concedes that the State is not contesting the fact that those marriages are legal and, therefore, satisfy the requirements of whatever state benefits, rights, etc. are related to marital status.

And that's not how getting your driver's license name changed works. The Utah DL application doesn't ask for the sex of your spouse at all. It asks you to show the DMV your marriage certificate to prove you're married. The marriage certificate doesn't say anything about the sex of either spouse (I got married in Utah and my Utah marriage certificate says nothing about that - and it even has a big picture of the Salt Lake Temple on it). So they're going to add - without any statute - a new, illegal qualification for a DL name change, which is to ask the sex of your spouse? Bad, bad idea.
posted by The World Famous at 3:40 PM on January 8, 2014 [7 favorites]


And in case anyone's curious:

Utah DMV Driver's License Application (The name change info is on the left, in the part filled out by the DMV employee.)

Utah County Marriage License Application (Says "bride" and "groom," but does not define the terms and does not ask for the sex of either party.)

Utah Marriage Certificate from the Salt Lake Temple (That's more or less what mine looks like, though mine is several decades more recent than that one and does look more modern.)

So if a woman (they'll know she's a woman because it says so on her driver's license) named Summerlyn Fielding McConkie shows up at the DMV in Provo and applies to change her name to Summerlyn Fielding McConkie Skousen because she got married the day after Christmas to someone named Taylor Kimball Skousen, and she hands over those three documents, what's the DMV employee going to do about it?
posted by The World Famous at 5:17 PM on January 8, 2014 [5 favorites]


(I mean, sure, the DMV could just assume that certificates coming from LDS sealings in particular are not going to be same-sex marriages and not ask people the question if that's the certificate they have, but then they'd be heaping state-ordered, illegal, systemic, extra-statutory religious discrimination on top of all their other problems.)
posted by The World Famous at 5:33 PM on January 8, 2014 [3 favorites]


My not-a-lawyer understanding is that the marriages that were performed have not been made illegal simply by virtue of the stay being ordered, is that correct? The stay means "quit it for now" but doesn't actually say anything about whether or not those marriages were legally, uh, obtained?

Because I think that, following the SF 2004 gay marriages, gingerbeer and I were considered legally married until the courts decided that summer that the mayor had no authority to declare them legal. I don't remember being told we couldn't access for-legally-married-people-only services or rights in the period between February 2004 and whenever the decision came down that summer.

So, like The World Famous, I am having some "Wait, what?!" thoughts about this.
posted by rtha at 5:47 PM on January 8, 2014 [1 favorite]


I've heard (through a Mormon friend of my brother) that there are some names that are "Mormon names", i.e. when he comes across someone with that name he's pretty sure they are from a Mormon background. Are "Summerlyn Fielding McConkie" and "Taylor Kimball Skousen" examples?
posted by benito.strauss at 6:10 PM on January 8, 2014


Yes, those names were a little Mormon inside joke, though Summerlyn is just a Utah name, not necessarily a Mormon one.
posted by The World Famous at 6:29 PM on January 8, 2014 [2 favorites]


So, in my dream world, the ruling ends up being that Utah doesn't have to recognize same-sex marriages by dint of same-sex marriages not existing, but having to issue marriage licenses to same-sex couples and recognize those marriages.

(How long until most Mormon genealogy charts have a same-sex couple on them?)
posted by klangklangston at 6:58 PM on January 8, 2014


Utah won't recognize the interim marriages, but the federal government will.
posted by Holy Zarquon's Singing Fish at 9:22 AM on January 10, 2014


I was just coming here to post that!

My first thought was: My god, but tax time for those poor couples might be even more painful than usual.
posted by rtha at 9:28 AM on January 10, 2014


It's either a very good time or a very bad one to be an accountant in Utah.
posted by Holy Zarquon's Singing Fish at 9:29 AM on January 10, 2014 [1 favorite]


a federal court judge in oklahoma has just found the state's ban on same-sex marriage unconstitutional. the ruling has been stayed pending appeal.
posted by nadawi at 2:21 PM on January 14, 2014 [2 favorites]


Ruling linked to from here.
posted by MoonOrb at 3:06 PM on January 14, 2014


The Oklahoma judge... stayed his own ruling, pending a decision from the Tenth Circuit Court of Appeals. (Page 67) Is that normal? Unusual?
In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.

This is in contrast to what happened in Utah, where the state was caught off guard and took days to file a stay.
posted by zarq at 3:18 PM on January 14, 2014


It's normal in light of the fact that the Utah ruling has been stayed, and both courts are in the Tenth Circuit. It would have been pretty silly not to stay it under the circumstances.

It would have been different had the district court been from, say, Indiana, which is under a different Circuit Court of Appeals.
posted by MoonOrb at 3:26 PM on January 14, 2014


No, it's my understanding that stays like that are entirely routine, expected and pro forma. Utah didn't get a stay because their counsel was fucking incompetent (or overconfident) and didn't include in their filings a request for a stay if they didn't win. Ergo, they didn't get one, and then they got all pissy with the judge, who told them to do their fucking jobs better.
posted by klangklangston at 3:26 PM on January 14, 2014 [5 favorites]


Which is not to say that a similar ruling in another circuit wouldn't have been stayed; just to say that it was a foregone conclusion here, with both district courts in the Tenth Circuit.
posted by MoonOrb at 3:27 PM on January 14, 2014


klangklangston - exactly.
posted by The World Famous at 3:28 PM on January 14, 2014


It's odd. I know there are excellent lawyers out there who vehemently disagree with the freedom to marry. Yet, in Utah and in California, a big part of why we won is that it seems like those lawyers wanted absolutely nothing to do with it, and instead they got jokers who were 500th in their class at Oral Roberts Law. I don't know if it's because competent, conservative lawyers are just too busy making a billion in some Halliburton acquisition or defending Exxon or what, but I'm consistently amazed at how bad many of these people are at their jobs — there was even gossip going around during Prop. 8 that there was some sort of intentional sabotage or something going on with Hollingsworth.
posted by klangklangston at 4:19 PM on January 14, 2014


My Constitutional Law professor used to say: Let's play a game called "Court." You control the law. I'll control the facts. I'll win every time.

The smart lawyers who disagree with same-sex marriage understand that the facts are not on their side and that, ultimately, the issue has been and will continue to be framed legally such that there are no - and will be no - winning legal arguments against same-sex marriage.
posted by The World Famous at 5:35 PM on January 14, 2014 [5 favorites]


And the pro-equality lawyers have been excellent. I once got to see the guy who argued the Iowa case at a hearing for a different case. He was one of the best appellate advocates I've seen. He retired after that case. It was his last one. I've always thought that must have been a satisfying way to end his career.
posted by Area Man at 5:36 PM on January 14, 2014 [3 favorites]


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