Federal Judge Strikes Down Utah’S Ban On Same-Sex Marriage

[Daniel2]

A new development on a religious front...

Presbyterian Assembly: Gay Marriage Is Christian

By JEFF KAROUB AND RACHEL ZOLL Associated PressJun 19, 2014, 3:57 PM

DETROIT — The top legislative body of the Presbyterian Church (U.S.A.) voted Thursday to redefine Christian marriage in the church constitution as the union of "two people" instead of only "a man and a woman."

The amendment requires approval from a majority of the 172 regional presbyteries, which will vote on the change over the next year. But in a separate vote that will take effect immediately, the Presbyterian General Assembly allowed ministers to preside at gay weddings in states where gay marriage is legal. Nineteen states and the District of Columbia recognize same-sex marriage.

The votes at the Detroit event were a full victory for Presbyterian gay-rights advocates. In 2011, the Presbyterian Church (U.S.A.) had eliminated barriers to ordaining clergy with same-sex partners, but did not recognize gay marriage.

Alex McNeill, executive director of More Light Presbyterians, a gay advocacy group, said the decisions Thursday were "an answer to many prayers" of same-sex couples.

"We will keep praying that the majority of our 172 presbyteries will confirm that all loving couples can turn to their churches when they are ready to be married," McNeill said.

Since the 2011 vote on gay ordination, 428 of the denomination's more than 10,000 churches have left for other more conservative denominations or have dissolved. The church now has about 1.8 million members. Still, some theological conservatives have remained within the denomination as they decide how to move forward. The conservative Presbyterian Lay Committee decried the votes in Detroit as an "abomination."

"The General Assembly has committed an express repudiation of the Bible, the mutually agreed upon Confessions of the PCUSA, thousands of years of faithfulness to God's clear commands and the denominational ordination vows of each concurring commissioner," the committee said in a statement.

Of the mainline Protestant denominations, only the United Church of Christ supports gay marriage outright. The Episcopal Church has approved a prayer service for blessing same-sex unions. The Evangelical Lutheran Church in America has eliminated barriers for gay clergy but allows regional and local church officials to decide their own policies on ordination.

The largest mainline group, the United Methodist Church, with about 7.8 million U.S. members, bars ordaining people in same-sex relationships. However, church members have been debating whether to split over their different views of the Bible and marriage, because gay marriage supporters have been recruiting clergy to openly officiate at same-sex ceremonies in protest of church policy.

[Daniel2]

The Religious News Service report has additional details, including mentioning Mormons:

Presbyterians vote to allow gay marriage by whopping 3-1 ratio

http://www.religionnews.com/2014/06/19/presbyterians-vote-allow-gay-marriage/

Lauren Markoe | Jun 19, 2014

(RNS) The Presbyterian Church (USA) voted Thursday (June 19) to allow gay and lesbian weddings within the church, making it among the largest Christian denominations to take an embracing step toward same-sex marriage.

The Presbyterian Church (USA) voted Thursday (June 19) to allow clergy to officiate same-sex couples’ marriage ceremonies, part of a move to unify church policy after a flurry of states legalized gay marriage.Creative Commons image by Selbe B

By a 76-24 percent vote, the General Assembly of the 1.8 million-member PCUSA voted to allow pastors to perform gay marriages in states where they are legal. Delegates, meeting in Detroit this week, also approved new language about marriage in the church’s Book of Order, or constitution, altering references to “a man and woman” to “two persons.”

This change will not become church law until a majority of the 172 regional presbyteries vote to ratify the new language. But given the lopsided 3-1 ratio of the vote, approval is expected.

Gay rights activists within the church rejoiced at their victory, which was remarkable for its margin of victory after multiple years of razor-thin defeats.

“This vote is an answer to many prayers for the church to recognize love between committed same-sex couples,” said Alex McNeill, executive director of More Light Presbyterians, a group that has led the fight for gay marriage within the church.

The vote came after an emotional but polite debate in which opponents of the motion said it conflicted with Scripture and would cause Presbyterian churches abroad to break relations with the PCUSA.

The Presbyterian Lay Committee, which opposes gay marriage, urged congregations to launch a financial boycott out of protest.

“The Presbyterian Lay Committee mourns these actions and calls on all Presbyterians to resist and protest them,” the group said in a statement. ” … You should refuse to fund the General Assembly, your synod, your presbytery and even your local church if those bodies have not explicitly and publicly repudiated these unbiblical actions.”

“God will not be mocked,” the statement continued, “and those who substitute their own felt desires for God’s unchangeable Truth will not be found guiltless before a holy God.”

Under the new rules, pastors who do not want to preside over gay weddings are not obligated to, and the change applies only in the 19 statesand the District of Columbia where same-sex civil marriage is legal.

The church has long grappled with the issue, which came to a head at the last General Assembly, in 2012, when a similar resolution allowing for gay marriage lost 338-308. Since then, the church’s decades-long decline in membership — it has lost 37 percent of its membership since 1992 — has continued. These losses have been led by conservative-leaning congregations that defected over what they lamented as the church’s embrace of more liberal values.

Those defections — many to smaller and more conservative Presbyterian denominations — made it more likely that the General Assembly would approve a gay marriage resolution this year.

Some who voted in favor of the gay marriage resolution said they hoped it would draw people to the church.

“I fear that our church brand is in jeopardy,” said church member and public relations professional Margaret Blankers to the General Assembly. “Some question the relevance of a church they see is not living up to its reputation for fairness. Do we really want to be known for not accepting and embracing our LGBT brothers and sisters?”

The General Assembly’s vote reflects change in the nation, where in rapid succession during the past year, judges have struck down laws prohibiting same-sex marriage. And a steady stream of opinion polls shows Americans’ approval of gay marriage has risen dramatically in the past few years, to around 55 percent today.

But even against this backdrop, the General Assembly’s vote stands out as a church adapting its policy to fit a rapidly shifting culture even as most other Christian denominations have resisted.

The nation’s largest churches — Roman Catholic, Southern Baptist, Mormon, United Methodist and most evangelical churches — recognize marriage only as between a man and a woman, though many Methodists are pushing for a change. The Episcopal Church, the Evangelical Lutheran Church in America and the United Church of Christ all allow same-sex marriage.

[Daniel2]

Key Ruling On New Standard For Review Of Anti-Gay Laws Will Stand

http://www.buzzfeed.com/chrisgeidner/appeals-court-wont-rehear-case-setting-new-standard-for-revi?s=mobile

The 9th Circuit won’t give further review to an earlier decision that gives laws that treat people differently based on sexual orientation additional scrutiny. An important ruling for pending marriage cases and other discrimination claims.

posted on June 24, 2014, at 11:09 a.m.

Chris GeidnerBuzzFeed Staff

AP Photo/Otto Kitsinger

WASHINGTON — A key federal appeals court decision to review claims of discrimination based on sexual orientation with heightened scrutiny will stand.

The 9th Circuit Court of Appeals turned down a request for a larger panel of the appeals court to reconsider the decision. The ruling subjects all sexual orientation claims within the 9th Circuit's nine states — including marriage-discrimination claims — to heightened scrutiny, which means treating gay, lesbian, and bisexual people differently under the law will be more difficult to justify when challenged in court. The ruling already has had an impact on the cases challenging Nevada and Idaho's marriage laws.

The case, SmithKline Beecham v. Abbott Laboratories, centered around a dispute over HIV drugs, but the sexual orientation question came in to play when lawyers for Abbott removed a person from the jury because he is gay. The 9th Circuit had ruled that a lawyer could not do so; in reaching that ruling, though, the court first decided that sexual orientation claims should be subjected to heightened scrutiny.

While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny must show more. Some, like those that classify based on race, must show a compelling state interest for the classification, while others, like those based on sex, must show a lesser but still important state interest in doing so.

Although the Supreme Court has not explicitly ruled on the question of what level of scrutiny sexual orientation claims should receive, the initial 9th Circuit decision in the case, which the court let stand on Tuesday, stated that the Supreme Court's decision in United States v. Windsor striking down part of the Defense of Marriage Act "established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review."

In today's order, the 9th Circuit announced that a majority of the appeals court judges did not vote to rehear the case en banc. The call for a vote on rehearing was unusual in that it was made by a judge on the court and not one of the parties in the case. The decision means that the ruling will stand unless the Supreme Court were to review the decision, which Abbott has said it will not seek.

Three of the appeals court judges dissented from the decision not to rehear the case, with Judge Diarmuid O'Scannlain writing for himself and Judges Jay Bybee and Carlos Bea, "While this case may end here—neither party is likely to seek certiorari given that neither party urged en banc reconsideration of the applicable standard of review—reliance on the panel's analysis as an example of anything more than an exercise of raw judicial will would be most unwise."

The states in the 9th Circuit are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

[Daniel2]

Wow...... that was faster than expected....

BREAKING: Tenth Circuit Court UPHOLDS Utah's Same-Sex Marriage Ban REPEAL.....

https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf

Federal appeals court says Utah's gay marriage ban is unconstitutional, puts ruling on hold

Jun 25, 2014

By NICHOLAS RICCARDI and BRADY McCOMBS, Associated Press

DENVER (AP) — A federal appeals court on Wednesday ruled for the first time that states must allow gay couples to marry, finding the Constitution protects same-sex relationships and putting a remarkable legal winning streak across the country one step closer to the U.S. Supreme Court.

The decision from a three-judge panel in Denver upheld a lower court ruling that struck down Utah's gay marriage ban. The panel immediately put on the ruling on hold so it could be appealed, either to the entire 10th U.S. Circuit Court of Appeals or directly to the nation's highest court.

"A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union," the panel wrote. Gay marriage in Utah likely will remain on hold pending the appeal.

The decision gives increased momentum to a legal cause that already compiled an impressive winning streak in the lower courts after the Supreme Court last year struck down the federal Defense of Marriage Act. Since then, 14 federal judges have issued rulings siding with gay marriage advocates.

Two of the most striking of those decisions were in the conservative states of Utah and Oklahoma, which saw their voter-approved gay marriage bans overturned in December and January, respectively. In Utah, more than 1,000 same-sex couples wed before the Supreme Court issued a stay.

The 10th Circuit panel considered both cases. It did not rule on the Oklahoma ban.

Though the Utah and Oklahoma cases were closely watched, it is unclear whether they will be the first to reach the Supreme Court. The high court could choose from cases moving through five other federal appellate courts, and wouldn't consider a case until next year at the earliest.

Attorneys representing Utah and Oklahoma argued voters have the right to define marriage in their states. Gay rights lawyers countered that they cannot do so in a way that deprives gay people of their fundamental rights.

The appellate ruling comes 42 years after the Supreme Court refused to hear a case of two men who were refused a marriage license in Minnesota, finding there was no legal issue for the justices to consider, and just 10 years after 11 states voted to outlaw gay marriage.

Now same-sex marriage is legal in 19 states and the District of Columbia. Recent polls show a majority of Americans support it.

And Indiana also issued it's ruling in favor of marriage equality just ten minutes earlier...

http://www.usnews.com/news/us/articles/2014/06/25/judge-strikes-down-indiana-ban-on-gay-marriage

[Daniel2]

From the Utah Pride Center:

"For a decade and a half, Utah lawmakers have enacted legislation that obstructs the rights and protections of LGBTQ individuals, couples, and families. The Tenth Circuit’s opinion today affirms Judge Shelby’s decision, and joins the unanimous chorus of federal judges who recognize that the United States Constitution requires that the fundamental right to marry be extended to gay and lesbian couples. We encourage Governor Herbert and Attorney General Sean Reyes to stop spending tax dollars to defend Utah’s unconstitutional ban on marriage equality and accept the lawful decisions of our federal courts. Even our Senior United States Senator, Orrin Hatch, accepts the rulings of the federal judiciary recognizing marriage equality. Utah’s gay and lesbian couples are ready to move forward with their lives and continue to help make Utah the best place to raise a family."

From the ruling:

"We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm."

[Daniel2]

http://4.bp.blogspot.com/-eVMKEXSk0NM/U6r_1kSBJkI/AAAAAAAC4gk/cf3PSXOrsk0/s1600/UTupdate2.jpg

[Daniel2]

More from the ruling:

"Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box."

[Daniel2]

"Similarly, the experimental value of federalism cannot overcome plaintiffs’ rights to due process and equal protection. Despite Windsor’s emphasis on state authority over marriage, the Court repeatedly tempered its pronouncements with the caveat that “tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons.”

"Even assuming that appellants are correct in predicting that some substantial degree of discord will follow state recognition of same-sex marriage, the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights."

"The drafters of the Fifth and Fourteenth Amendments knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for

greater freedom...A prime part of the history of our Constitution . is the story of the extension of constitutional rights and protections to people once ignored or excluded." 

"Unlike polygamous or incestuous marriages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships, see Lawrence, 539 U.S. at 567, and to the public manifestations of those relationships,Windsor, 133 S. Ct. at 2695. Our holding that plaintiffs seek to exercise a fundamental right turns in large measure on this jurisprudential foundation that does not exist as to the hypothetical challenges identified by appellants."

[Rock_N_Roll]

It's only a matter of time before we look back and wonder why Utah spent so much time and money fighting against equality, when the outcome was so inevitable. 

[Daniel2]

The Church of Jesus Christ of Latter-day Saints released a statement saying: "The Church has been consistent in its support of marriage between a man and a woman and teaches that all people should be treated with respect. In anticipation that the case will be brought before the U.S. Supreme Court, it is our hope that the nation’s highest court will uphold traditional marriage."

http://www.sltrib.com/sltrib/news/58007681-78/court-marriage-appeals-sex.html.csp

[Walden]

"it is our hope that the nation’s highest court will uphold traditional marriage"

 

Yes, dare to dream.....I hope to win the lottery tomorrow.

[Mola Ram Suda Ram]

It's only a matter of time before we look back and wonder why Utah spent so much time and money fighting against equality, when the outcome was so inevitable. 

Sad thing was, this was never about equality. This whole thing is a ruse. But I really don't care much at this point one way or the other.

[Daniel2]

Sad thing was, this was never about equality. This whole thing is a ruse. But I really don't care much at this point one way or the other.

If what you say is true, that "it's never been about" achieving equality of civil and social dignity and respect for same-sex relationships, what do you think it has really been about, Mola?

What is "the ruse" you speak of?

[Stone holm]

Had a three-way debate in the law office today.  Oldest member argued that the SCOTUS would hand down a 9 to 0 ruling in favor of SSM, youngest member argued it would be 5 to 4 ruling against SSM, and I argued that it would be a 5 to 4 ruling in favor of SSM.  Personally I concede its probably 50/50 could go either way depending on the swing vote and what was meant in the DOMA ruling.  Either way, it will really come down to whether we end the divisive issue now once and for all, or whether certain States marginalize themselves and get subjected to various economic boycotts until they repeal their bans -- which will be difficult for the rising generation to do given some States have State Constitutions which are harder to amend than California's

[Daniel2]

Had a three-way debate in the law office today.  Oldest member argued that the SCOTUS would hand down a 9 to 0 ruling in favor of SSM, youngest member argued it would be 5 to 4 ruling against SSM, and I argued that it would be a 5 to 4 ruling in favor of SSM.  Personally I concede its probably 50/50 could go either way depending on the swing vote and what was meant in the DOMA ruling. 

I'm curious: what are foundational arguments that the three of you felt warranted those respective positions?

I tend to agree with the oldest member's position---that it will be a 9-0 split in favor of SSM. My reasons include the unanimous precedent set by the 22 (and growing) judicial decisions in favor of SSM thus far, and that I find the interpretation of their rulings to be airtight--that states do not have the ability to regulate marriage in such a fashion that would violate individuals' constitutional rights.

I'd love to hear some of the arguments made by all the sides in your discussion.

[Stone holm]

Basis for the predictions:

 

9/0 in favor = felt that the Court would come together like they did for Everson vs. Board of Education -- this was the older attorney living in a more collegial era when the Court felt that unity was important on decisions of this nature, and that the Court would bow to the inevitable.

 

5/4 against = young attorney, felt the Court would not find sexual orientation a protected right, and that the historically oriented strict constructionists would buy into the argument that marriage was traditionally a State decision, and that DOMA was strictly a Federalism decision that would not be applied.

 

5/4 in favor = myself, felt that the swing vote when confronted with a tidal wave of lower Court decisions would emphasize the non-Federalism aspects of DOMA and come down on the side of protecting the individual's right to choose a marriage partner.  (Caveat, I felt it was too close to call at this point.  I also felt that I hoped that the SCOTUS would end the divisive issue now once and for all, but if it didn't -- SSM would still be the law of the land within 20 years because of the political and economic clout the LGBT Community held. States that insisted on discriminating would eventually be subjected to such powerful economic boycotts that the wealthy members of the GOP who really don't give a rip about the issue, but use it as vote gathering tool would find it too expensive to wield and abandon it.  Remember many of the early lawsuits were brought by Log Cabin Republicans.)

 

My hope is that the issue gets resolved soon so that politics can focus on more material problems the country faces other than whether Jack can marry Phil -- I realize that may seem callous towards the LGBT Community, but really this whole thing has been used as a weapon of mass distraction from critical economic, environmental, and foreign policy concerns.

[Daniel2]

Thanks for that summery, Stone Holm. Interesting to hear the different points of view. I wonder how many lower Courts of Appeal will weigh in while we await SCOTUS, how those additional rulings will affect the high court's final ruling, and which of the many marriage cases they'll select as the one they choose to rule on...

The LDS Church's Deseret News has a good recap, today:

Since Windsor: The new legal landscape of same-sex marriage

http://www.deseretnews.com/article/865605815/Since-Windsor-the-new-legal-landscape-of-same-sex-marriage.html?pg=all

By Eric Schulzke, Deseret News National Edition

Published: Wednesday, June 25 2014 10:15 p.m. MDT

Updated: Thursday, June 26 2014 10:42 a.m. MDT

J. Scott Applewhite, Associated Press

Last year in U.S. v. Windsor, Justice Scalia argued in his dissent that the majority decision, while insisting it was reserving judgment, made it inevitable that lower federal courts would begin overturning state gay marriage bans. Scalia was right.

NATIONAL EDITION

This story is part of theDeseret News National Edition, which focuses on the issues that resonate with American families.

A year ago in U.S. v. Windsor, Justice Antonin Scalia argued in his dissent that the majority decision, while insisting it was reserving power to the states, made it inevitable that federal courts would overturn state gay marriage bans.

"As far as this Court is concerned," Scalia wrote, "no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition."

Scalia was right.

Since June of 2013, when Windsor was announced, there have been 18 separate federal court decisions against same-sex marriage bans in the states, and none upholding.

In Windsor, the court held that the federal Defense of Marriage Act violated various provisions of the Constitution, including the Equal Protection Clause of the 14th Amendment, because it had "the purpose and effect to disparage and to injure” the “personhood and dignity" of gay couples.

In his dissent, Chief Justice John Roberts accepted the majority's claim that Windsor would not affect state laws against gay marriage. Roberts noted that the majority opinion appealed to the “historic and essential authority" of the states "to define the marital relation" as a reason to overturn the federal marriage law.

But Scalia disagreed. The notion that the states have historic authority in marriage regulation, he argued, would quickly fall to the overriding logic of Windsor, which was that singling out same-sex relationships for stigma violates principles of due process and equal protection under the U.S. Constitution.

His prediction came true again June 25 when the two latest federal decisions came down. In Indiana, a federal district court judge struck down the state's marriage statute and did not issue a stay, allowing marriage licenses to be issued immediately.

And at the 10th Circuit Court of Appeals, a three-judge panel upheld a decision from last December in which a federal district court judge struck down Utah's marriage law. The new ruling immediately overturned any remaining gay marriage bans in all states in the 10th Circuit, including Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma. However, the circuit decision did leave the stay in place, pending appeal to the U.S. Supreme Court.

The post-Windsor saga thus came full circle, as Utah was the first domino to fall in December 2013.

Three days after that decision, a federal judge in Ohio ruled that the state must respect same-sex marriages performed in other states. That ruling is on hold pending appeal to the 6th Circuit.

"The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples simply because the majority of the voters don't like homosexuality,” wrote Judge Timothy Black in the Ohio decision, citing the majority in Windsor and Scalia’s dissent. “Under the Constitution of the United States, the answer is no.”

Scalia's chagrined prophecy was thus, ironically, cited as authority.

A few weeks later, a federal judge in Oklahoma echoed the Utah decision. That case was on hold pending appeal, and is now moot since the 10th Circuit has decided the Utah case in the same circuit.

In a busy February, Kentucky was ordered to respect same-sex marriages from other states. As with Ohio, that ruling remains on hold pending an appeal to the 6th Circuit. A few days later, Virginia was ordered to both allow gay marriages and respect those from other states. That ruling is also on hold pending appeal.

Since then, federal court decisions have changed marriage laws in Illinois, Texas, Tennessee, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin and Indiana.

Some state courts have also acted, perhaps borrowing ideas from Windsor and anticipating the direction of federal rulings. New Mexico and New Jersey legalized gay marriage by judicial decree, with no appeal, while state judicial action in Texas and Arkansas is on hold pending appeal.

Altogether, 14 states have had their laws directly overturned by federal court decrees, either requiring them to perform or recognize same-sex marriages, and an additional three states — Colorado, Kansas and Wyoming — were swept up in the 10th Circuit decision this week. (New Mexico, part of the 10th Circuit, was not affected as a state court had already legalized same-sex marriage.)

Most of these federal decisions remain on hold pending appeal to circuit courts. The 10th Circuit decision this week, as noted, is on hold pending appeal to the Supreme Court.

“Justice Scalia is described as an incorrigible truth teller,” University of Utah law professor Clifford Rosky told the Deseret News last December. “When sodomy laws were struck down in Texas, he said marriage was next, and when the federal marriage laws were struck down last summer, he said state laws were next.” Rosky is a vocal supporter of same-sex marriage legalization.

Whether Scalia simply called the impact of Kennedy's ruling in Windsor accurately, or whether he inadvertently helped nudge it along, there is now little doubt that his prediction has been borne out faster than anyone supposed a year ago.

Email: eschulzke@desnews.co

[Daniel2]

Weird. Incompetent? Intentional? An oversight...?

My money's on "a stupor of thought."

Utah AG’s Office misses deadline in same-sex marriage case

http://m.sltrib.com/sltrib/mobile3/58133567-219/court-utah-sex-federal.html.csp

The Salt Lake Tribune

First Published 4 hours ago

Updated 2 hours ago

The Utah Attorney General’s Office failed to file preliminary documents in connection with its appeal of a federal court judge’s order that the state must honor and recognize all same-sex marriages performed in Utah after another federal judge’s ruling toppled Utah’s voter-approved ban on such marriages.

A "deficiency notice" filed Monday by the clerk of the 10th Circuit Court in Denver says that state attorneys failed to file a docketing statement, transcript order and notice of appearance in the same-sex recognition case.

"Please correct the stated deficiencies within 10 days of the date of this notice," states a letter signed by Clerk of Court Elisabeth A. Shumaker.

The paperwork is due on July 10, according to the court docket.

Missy Larsen, said Monday there were merely some attachments missing from the attorney general’s filing.

"It won’t affect the case," she said, adding that the paperwork would be filed in the next few days.

In May, Judge Dale A. Kimball ordered Utah to honor and recognize all same-sex marriages performed in the state after fellow federal Judge Robert Shelby in December toppled Utah’s voter-approved ban on such marriages.

But less than a month after Kimball’s ruling, the state filed a notice in federal court that it would appeal Kimball’s order. And on June 6, the 10th Circuit Court of Appeals temporarily halted any movement toward marriage recognition.

At that time, the federal appeals court issued an stopgap that would prevent any same-sex couples from applying for marriage benefits in Utah until the court has had a chance to examine the merits of the state’s request for a permanent stay.

Kimball argued in his decision that denying married gay and lesbian Utahns of legal spousal benefits was a violation of their Fourteenth Amendment rights.

More than 1,000 same-sex couples were married in Utah during the 17 days that Shelby’s ruling was in effect before the U.S. Supreme Court issued a stay.

In connection with Shelby’s ruling, the 10th Circuit Court of Appeals last Wednesday in a 2-1 decision upheld Shelby’s finding that outlawing same-sex marriage is a violation of the U.S. Constitution.

But the court immediately stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.

Utah attorney general’s office has said it will initiate that appeal.

[thesometimesaint]

It becomes a real issue of an ex-post facto law.

[Stone holm]

After the Hobby Lobby case, the oldster in our office changed his opinion as to the split -- he now agrees with me.  He doesn't think the SCOTUS conservative majority gives a rip about the consequences of their votes anymore.

[thesometimesaint]

After the Hobby Lobby case, the oldster in our office changed his opinion as to the split -- he now agrees with me.  He doesn't think the SCOTUS conservative majority gives a rip about the consequences of their votes anymore.

 

I can hardly wait for the USSC to decide what deeply held religious Mormon beliefs are not protected by law.

[Daniel2]

After the Hobby Lobby case, the oldster in our office changed his opinion as to the split -- he now agrees with me.  He doesn't think the SCOTUS conservative majority gives a rip about the consequences of their votes anymore.

The Hobby Lobby case definitely is a head-scratcher, when it comes to trying to forecast future votes.

I want to believe it will be 9-0 in favor of SSM, but fear you may be right.

[Daniel2]

But then, on the other hand, the ongoing rulings in favor of SSM just keep rolling in at their unanimous and dizzyingly rapid pace...

Judge strikes down Kentucky's gay marriage ban

It is not yet clear when same-sex couples could be issued marriage licenses.

By ASSOCIATED PRESS | 7/1/14 12:42 PM EDT Updated: 7/1/14 2:09 PM EDT

LOUISVILLE, Ky. — A federal judge in Kentucky struck down the state's ban on gay marriage on Tuesday, though the ruling was temporarily put on hold and it was not immediately clear when same-sex couples could be issued marriage licenses.

U.S. District Judge John G. Heyburn in Louisville concluded that the state's prohibition on same-sex couples being wed violates the Equal Protection Clause of the U.S. Constitution by treating gay couples differently than straight couples.

Heyburn previously struck down Kentucky's ban on recognizing same-sex marriages from other states and countries, but he put the implementation of that ruling on hold. That decision did not deal with whether Kentucky would have to issue marriage licenses to same-sex couples. Instead, Tuesday's ruling dealt directly with that question.

"Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct," Heyburn wrote. "Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree."

Heyburn noted that every federal court to consider a same-sex marriage ban has found it unconstitutional. The U.S. 6th Circuit Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session, on Aug. 6. Although the cases are unique, each deals with whether statewide gay marriage bans violate the Constitution.

Kentucky Gov. Steve Beshear said the state will appeal the decision.

Dan Canon, one of the attorneys for the plaintiffs, said he was excited about the ruling because the day will arrive soon when same-sex couples can get a marriage license in Kentucky, even though the decision was put on hold pending appeals.

"We believe the opinion forcefully lays to rest any notion that Kentucky's anti-marriage laws are based on anything other than discrimination against homosexuals," Canon said.

Read more: http://www.politico.com/story/2014/07/judge-strikes-down-kentuckys-gay-marriage-ban-108481.html#ixzz36FLu8Cng

Judge Heybern was appointed by George HW Bush on the recommendation of Mitch McConnell. Some of his most salient points directly from the ruling itself:

Defendant adds a disingenuous twist to the argument:traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability. 

These arguments are not those of serious people...

However, that Kentucky’s laws do not deny licenses to other non-procreative couples reveals the true hypocrisy of the procreation-based argument.

Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbians persons. But, as the Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted...

This Court bases its ruling primarily upon the utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest...

Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.

Two reactions from the gay blogosphere:

- Heyburn is not just a Republican. He is a very prominent and respected Republican, founder of one of Kentucky's most prestigious law firms. He was nominated by GHW Bush. No way can he be characterized as a liberal activist judge.

- His use of the word "conceivable" in the quote above is significant. He is saying that even under the most lenient version of rational basis review, the marriage amendment can't survive. That might be a first. Usually, courts that strike down these amendments apply "rational basis with teeth" a sort of tougher version of rational basis. But under the most lenient version, the state only has to show that there is some conceivable legitimate purpose for the law even if it wasn't the actual purpose pursued by the legislature at the time of passage. Under this standard, almost any legislation can survive judicial review. Heyburn basically is saying that the marriage amendment can't be seen as anything other than an absurdity."

It's hard to imagine a split supreme court when the judges have been almost universally the same (except the one dissenting LDS appellate judge...)

[toon]

Basis for the predictions:

 

9/0 in favor = felt that the Court would come together like they did for Everson vs. Board of Education -- this was the older attorney living in a more collegial era when the Court felt that unity was important on decisions of this nature, and that the Court would bow to the inevitable.

 

5/4 against = young attorney, felt the Court would not find sexual orientation a protected right, and that the historically oriented strict constructionists would buy into the argument that marriage was traditionally a State decision, and that DOMA was strictly a Federalism decision that would not be applied.

 

5/4 in favor = myself, felt that the swing vote when confronted with a tidal wave of lower Court decisions would emphasize the non-Federalism aspects of DOMA and come down on the side of protecting the individual's right to choose a marriage partner.  (Caveat, I felt it was too close to call at this point.  I also felt that I hoped that the SCOTUS would end the divisive issue now once and for all, but if it didn't -- SSM would still be the law of the land within 20 years because of the political and economic clout the LGBT Community held. States that insisted on discriminating would eventually be subjected to such powerful economic boycotts that the wealthy members of the GOP who really don't give a rip about the issue, but use it as vote gathering tool would find it too expensive to wield and abandon it.  Remember many of the early lawsuits were brought by Log Cabin Republicans.)

 

My hope is that the issue gets resolved soon so that politics can focus on more material problems the country faces other than whether Jack can marry Phil -- I realize that may seem callous towards the LGBT Community, but really this whole thing has been used as a weapon of mass distraction from critical economic, environmental, and foreign policy concerns.

 

My money is on a 6-3 in favor.  I think Kennedy has already tipped his hand where he stands in the prior cases.  I think Roberts wishes for that more congenial era and that, for him, unity and consensus still have merit in themselves.  However, I don't see Scalia, Thomas, or Alito, being swayed by any argument for the merits of unity or consensus.  If Scalia had any record of considering precedent over what he thought was the correct conclusion, he might go along.  But since he doesn't have that history, I see a dissent from him.

[toon]

After the Hobby Lobby case, the oldster in our office changed his opinion as to the split -- he now agrees with me.  He doesn't think the SCOTUS conservative majority gives a rip about the consequences of their votes anymore.

 

As I posted above, I think that hold true for Scalia, Thomas, and Alito.  But I believe Kennedy and Roberts care a good deal about the consequences of their votes.