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Same-sex marriage (SSM) in Utah:

Part 8: 2014-JAN: More reactions to the
Supreme Court stay from the media, plaintiffs,
law specialists, and the LGBT community.

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This topic is continued from the previous essay.

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2014-JAN-06/07: Reactions from the media to the Supreme Court stay:

Robert Barnes of the Washington Post wrote:

"There was no recorded dissent in the Supreme Court’s order halting the marriages, but also no explanation of the court’s reasoning for granting the stay. It means that the appeals court’s expedited review of Shelby’s ruling will continue — briefs are due before the end of the month [2014-JAN]. Even if the lower court rules quickly, the Supreme Court would have to sense an emergency in order to take the case immediately.

It seems more likely that the justices want to hear from other courts — there are similar challenges to state same-sex marriage bans pending around the country. The court will likely have more judicial input if it delays the issue until ... [its new] term that begins in [2014-] October.

Another factor: when the five-justice majority in June struck down [Section 3 of] the federal Defense of Marriage Act, it paid some attention to the traditional role of states in defining marriage. To allow the marriages to continue in Utah on the basis of a single federal judge’s ruling would have appeared to disregard that concern." 1

As Barnes stated, none of the nine Justices indicated that they dissented from the stay order. Many sources in the media claimed that the nine Justices were unanimously in favor of the stay. In fact, the stay does not give any indication of what the Justices currently believe about marriage equality. None of the Justices added a personal comment to the stay.

Ian Millhiser, writing for Think Progress, said:

"Several justices with largely pro-gay records have indicated that they prefer an incremental approach to the marriage equality question, and leaving the lower court’s decision in effect would have been inconsistent with that approach. Nor does the Court’s order indicate much about how the justices view the merits of this case. Recall that the United States Court of Appeals for the Ninth Circuit stayed a lower court order suspending California’s Proposition 8, only to [later] declare that anti-gay proposition unconstitutional." 2

David Savage, writing for the Los Angeles Times, said:

"The Supreme Court ordered a halt to same-sex marriages in Utah on Monday, sending a go-slow signal as it suspended a federal district judge's decision that gays and lesbians have a constitutional right to marry.

The terse order came with no dissents, suggesting justices are not ready to recognize a right to gay marriage nationwide and are reluctant to allow a lower court to nudge them into answering a legal question they carefully avoided in two landmark gay rights rulings last year." 3

Those two rulings were released in late 2013-JUN. The cases were:

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2014-JAN-06/07: Reactions from the plaintiffs to the Supreme Court stay:

One of the plaintiffs in the Utah case, Moudi Sbeity, had decided to wait until the situation stabilizes before marrying his partner Derek Kitchen. Sbeity said:

"It feels like we are second-class citizens during the stay. There's also the fear of the unknown of what might come next."

One of the plaintiffs' lawyers, James E. Magleby, said that the stay:

"... is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over. ... Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally. 4

He appears to be certain that when the appeal to the 10th Circuit Court of Appeals -- and perhaps to the U.S. Supreme Court -- is completed, that marriage equality will return to Utah..

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2014-JAN-06/07: Reactions from specialists in constitutional law to the Supreme Court stay:

Cornell University law professor Michael Dorf, a former court clerk of the Supreme Court, said:

'If this means anything, it means they want a little more time to decide this. And this order guarantees that'." 5

Michael J. Klarman, a legal historian at Harvard Law School, did not anticipate that the Supreme Court would issue the stay. He expects that the five Justices -- who had declared Section 3 of the federal Defense of Marriage Act (DOMA) in 2013-JUN unconstitutional -- will eventually vote in favor of marriage equality. He said:

"They might prefer to duck the issue for a couple more years. But the historical handwriting on the wall is simply too clear for any of them to want to associate themselves with what will increasingly appear to be a bigoted position." 5

Notre Dame law professor Richard Garnett commented:

"The trial court's ruling in Utah goes further than the court has gone so far, and so it is not surprising that the justices — without comment or dissent — put that ruling on hold, pending further review." 5

Law professor Douglas NeJaime, at the University of California, Irvine commented that the stay order does not give any indication of how the Supreme Court Justices will eventually rule on SSM in Utah. He believes that the Justices would prefer to let the case work through the normal legal channels before they become involved. 6

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2014-JAN-06/07: Reactions from the LGBT community to the Supreme Court stay:

Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR) said:

"No one should draw any negative inferences about where the Court is leaning. This is an unprecedented situation. Never before has a federal court struck down a state marriage law and then declined to stay it, and never before has a Court of Appeals also declined to issue a stay. For those reasons, the chances that the Supreme Court would issue a stay until the appeal is resolved were always quite high. So the real news here is that so many marriages were able to take place. And it is significant that the Court did not rush to act. There is nothing unusual about the issuance of a stay when a federal court strikes down a state law on federal grounds. Bottom line [is that] the prospects for this case still look very bright. And there will never be any going back in Utah." 7

Chad Griffin, president of the Human Rights Campaign (HRC) issued a statement:

“Utahns and other Americans have witnessed the joy that marriage has brought to hundreds of loving and committed [same-sex] couples over the past weeks.  While it is disappointing that the dreams of many more will be put on hold, we know that in the end justice will be served and no couple will be excluded from this cherished institution.  We still live in two Americas where full equality is within reach in one and another where even basic protections are non-existent.  As the marriage equality map expands, history is on our side and we will not rest until where you live is not a barrier to living your dreams." 8

D'Shaun Guillory, posting to an article on the Towle Road web site, wrote:

"... Utah will temporarily halt these marriage licenses while the 10th U.S. Circuit Court of Appeals makes a full court decision on whether to honor the lower court ruling overturning the ban on gay marriage in Utah or to allow the ban to continue. Whatever that decision is, it will ultimately be appealed to the US Supreme Court. Do not be alarmed many observes foresaw this type of scenario. If a lower [court] makes a ruling that broad, the state is not going to go without a fight and by that I mean the state of Utah. But keep in mind, if the 10th U.S. Circuit Court of Appeals rules in favor of allowing marriage equality this will indeed be the final nail in the coffin for gay marriage bans everywhere as the US Constitution will finally federally be interpreted as protecting marriage equality. If this is the case, no gay marriage ban can stand anywhere in the country and a new legal precedent will be set. I hope that brings some calm to the room. [Grammar etc. corrected] 9

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Bob Barnes, "SCI+OTUS playing wait-and-see on gay marriage," Washington Post, 2014-JAN-06, at: http://www.washingtonpost.com/
  2. Ian Millhiser, "BREAKING: Supreme Court Stays Marriage Equality In Utah," Think Progress, 2014-JAN-06, at: http://thinkprogress.org/
  3. David G. Savage, "The Supreme Court stays a judge's order allowing gay weddings in Utah, suggesting justices are not ready to make same-sex marriage a national right," 2014-JAN-06, at: http://www.latimes.com/
  4. Robert Barnes, "Supreme Court halts same-sex marriages in Utah pending appeal," Washington Post, 2014-JAN-06, at: http://www.washingtonpost.com/
  5. David G. Savage, "The Supreme Court stays a judge's order allowing gay weddings in Utah, suggesting justices are not ready to make same-sex marriage a national right," 2014-JAN-06, at: http://www.latimes.com/
  6. Brady McCombs & Mark Sherman, "Gay Couples' Rush to Marry in Utah Grinds to Halt," ABC News, 2014-JAN-06, at: http://abcnews.go.com/
  7. Lisa Keen, "U.S. Supreme Court Grants Utah Stay," The Rainbow Times, 2013-JAN-07, at: http://www.therainbowtimesmass.com/
  8. "Supreme Court Puts Pause on Utah Marriage Equality," Human Rights Campaign, 2014-JAN-06, at: http://www.hrc.org/
  9. Andy Towle, Supreme Court halts gay marriages in Utah," Towle Road, 2014-JAN=-6, at: http://www.towleroad.com/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JAN-06
Latest update: 2014-JAN-16
Author: B.A. Robinson

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