Gay and lesbian Utahns are waking up and heading to their news sources to see if any rulings have come down affecting their right to marry in the state. Yesterday, District Judge Robert Shelby denied a motion by the state to stay his order, and marriages continued to occur throughout the state on Monday, Dec. 23.
The state took their motion to the 10th Circuit Court of Appeals in Denver, Colo. Monday afternoon and that court gave attorneys for the plaintiffs until 5 p.m. to respond.
As of 6:30 a.m. Tuesday, the court has not ruled on the motion. The Tooele County Clerk’s office opens at 7 a.m. and is one of the clerks around the state that is issuing marriage licenses to same-sex couples. (Update: as of 8 a.m., as all other county clerks’ offices open, no ruling is showing.)
The court is facing two issues: whether to temporarily stay Shelby’s ruling as an appeal proceeds, which would stop same-sex marriages from happening in Utah but not invalidate those that have already happened, and the appeal itself. If the court does not stay the decision, the marriages will continue during the appeal, but the state can take the motion to stay to the U.S. Supreme Court.
According to professor of law and politics at University of California, Irvine Rich Hasen in a tweet yesterday, that request would go to U.S. Associate Justice Sonia Sotomayor, a female, Hispanic Obama appointee. She could rule unilaterally or refer the issue to the entire court.
Motion to Stay
The fact that the circuit court has denied two of the state’s motions to stay is not an indicator as to whether they will this time. Both decisions were more procedural in nature and did not take any of the arguments made by the state into account. The motion yesterday is the first that this court will actually look at the merits of the arguments.
In California’s Proposition 8 case, heard by the 9th Circuit Court of Appeals in 2008, the court granted a stay, halting marriages from taking place until all appeals were decided, which happened when the U.S. Supreme Court ruled against it this year. Marriages then resumed in California.
However, more recently, and importantly since the U.S. Supreme Court’s decision on Prop 8 and DOMA, the New Jersey State Supreme Court refused to issue a stay in a lower court’s ruling in favor of marriage equality. Gov. Chris Christie then dropped the state’s defense of the same-sex marriage ban.
University of Utah law professor and Equality Utah Board Chair Cliff Rosky said that the burden on the state to have a stay issued is extraordinary.
“If you lose [a case], ordinarily you just lose. To get a stay, you have to show first, that you’re likely to win on appeal, and second, that if a stay isn’t granted immediately, the state would suffer irreparable harm. Harm that cannot be cured by any court,” Rosky said in a Salt Lake Tribune Trib Talk discussion that involved Rosky, BYU law professor Lynn Wardle and this writer.
Rosky posed the question that, since same-sex marriages have already happened in the state, what additional harm would additional marriages have on the state?
A decision is expected today.
Judicial rules are that the state has a right to automatic appeal to the circuit court. This differs from an appeal to the U.S. Supreme Court, in that they choose which cases to take. An appeal can take months or even years, such was the case with California’s Proposition 8.
Some experts look to the makeup of the court and what party the president who appointed them was to determine how a court would rule.
The makeup of the 10th Circuit Court of Appeals is pretty split judges between judges appointed by Democrats and Republicans. President Obama has appointed three of the judges and President Bill Clinton appointed two. One was appointed by President George H.W. Bush and four by President George W. Bush. This makes a five to five split.
But knowing how a judge will rule based on the political affiliation of the president who appointed them is an inexact science. Indeed, while Judge Shelby was appointed by President Obama, his name was put forth by U.S. Sen. Orrin Hatch. There have been many surprises across the country of liberal-appointed judges actually being conservative on the bench and vice-versa.
No judge has ruled previously on any same-sex marriage case in the 10th Circuit. Seven years ago, the circuit court did rule against an Oklahoma statute that barred recognition of adoptions by same-sex couples that were performed in another state. None of the current judges presided over that case.
Jon Davidson, legal director for Lambda Legal, said that he expects this case to take three months for a briefing phase, but that could be extended by the legal team of either side.
Then oral arguments will take place and the judges will take time to write their decisions. He said the time from notice of appeal, which officially happened yesterday, and a decision on the case can be as short as six months, but can take a number of years.
Either party can take a ruling by the circuit court to the U.S. Supreme Court. If that court refuses to take it, the ruling stands and affects all states within the circuit.
A similar Nevada case may make it to the U.S. Supreme Court before the Utah case. There are nearly 20 other cases making their way through the courts nationwide following the U.S. Supreme Court’s ruling on DOMA and Prop 8.
Marriages already solemnized
The state, including Utah Gov. Gary Herbert, has been saying that marriages performed during this time are likely to be dissolved should the ruling be overturned by a higher court. But legal precedent shows otherwise.
“Even if a stay is issued, all of [the existing] marriages are perfectly valid,” Rosky said. “A stay is simply a pause in the enforcement of a court order. It does not speak to whether the court order was correct.”
But, even if the decision is overturned, experts say that the marriages that were solomnized through that decision will remain valid.
“Never, in the history of this country, has a court invalidated a marriage that was lawful when it was entered, retroactively,” Rosky explained. “Taking back those marriages, so to speak, would be an extraordinarily cruel and unusual thing to do.”
Utah State Sen. John Valentine agreed.
“In law, we have this concept of vested rights,” he said in a KSL Radio interview. “Vested rights mean that you are protected from changing laws if something was legal when you entered into it. The marriages being performed today will remain legal even if a court rules against [Shelby’s] decision.”
The Doctrine of Vested Rights was first held in 1891 in McCullough v. Virginia, where the court held “It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”
It is the same doctrine that “grandfathers” property owners from new laws.