December 23, 2013

Judge allows gay marriage in Utah to continue

He says the voter-approved measure is a violation of gay couples’ constitutional rights under the Equal Protections Clause of the 14th Amendment.

By Brady Mccombs And Paul Foy
The Associated Press

SALT LAKE CITY — A federal judge on Monday allowed gay marriage to continue in Utah, rejecting a request to put same-sex weddings on hold as the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses.

click image to enlarge

Samantha Christensen, left, and Elise Larsen apply for a marriage license in the Salt Lake County Clerk’s Office in Salt Lake City on Friday. A federal judge on Monday is set to consider a request from the state of Utah to block gay weddings that have been taking place since Friday when the state’s same-sex marriage ban was overturned.

The Associated Press

Judge Robert J. Shelby overturned Utah’s ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Shelby’s ruling is far from the end of the legal wrangling on the topic. The state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold, and that court could rule as soon as Monday evening or Tuesday. The same court, in Denver, likely will hear the full appeal of the case several months from now.

In the meantime, the rush on marriage licenses continues for gay couples around Utah.

More than 300 gay couples have obtained marriage licenses since Friday in Utah’s most populous county. On Monday, an estimated 100 licenses were issued in other counties, while some clerks shut their doors as they awaited Shelby’s decision.

People began lining up Sunday night at the Salt Lake County clerk’s office in the hopes of getting licenses amid the uncertainty of the pending ruling. Couples then got married once every few minutes in the lobby to the sound of string music from a violin duet.

They anxiously eyed their cellphones for news on Shelby’s decision, and a loud cheer erupted once word spread that he wouldn’t be blocking weddings. “We feel equal!” one man shouted; his partner called it “this magic happening out of the clear blue.”

Adam Blatter said he was in a panic to get married Monday morning before a judge could halt the issuance of licenses. He and his partner, Joseph Chavez, were elated when it became clear their wait was worthwhile, and they were shocked that it was happening in a state long known as one of the most conservative in the country.

“We expected Utah to be the last place we could get married,” Blatter said.

Even if the 10th Circuit grants a stay, the marriages licenses that already have been issued probably will remain valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It’s not entirely certain, however, because Utah’s situation has unfolded differently than other states, and there’s no direct precedent, he said.

The appeals court already has rejected two previous requests from the state due to procedural issues, but it has not yet considered the case based on merits.

Shelby’s decision to overturn Utah’s same-sex marriage ban has drawn attention given the state’s long-standing opposition to gay marriage and its position as headquarters for the Mormon church, which teaches that homosexual activity is a sin. The ruling makes Utah the 18th state where same-sex couples can legally wed.

It’s estimated that nearly two-thirds of Utah’s 2.8 million residents are members of The Church of Jesus Christ of Latter-day Saints, and Mormons dominate the state’s legal and political circles.

The Mormon church was one of the leading forces behind California’s short-lived ban on same-sex marriage, Proposition 8, which voters approved in 2008. The church said Friday it stands by its support for “traditional marriage,” and hopes a higher court validates its belief that marriage is between a man and woman.

In court Monday, Utah lawyer Philip Lott repeated the words “chaotic situation” to describe what has happened in Utah since clerks started allowing gay weddings. He urged the judge to “take a more orderly approach than the current frenzy.”

“Utah should be allowed to follow its democratically chosen definition of marriage,” he said of the 2004 gay marriage ban.

Lott later said the state was disappointed with Shelby’s latest ruling and would continue its legal battle.

In explaining his decision, Shelby said the state made basically the same arguments he had already rejected. He added the situation in Utah has become “something of a mess” because the state did not have a request to halt the marriages ready at the time of his ruling Friday or in the hours afterward.

Lott countered that they had no prior notification the ruling was coming, and said the fact that it was the Friday before Christmas complicated matters.

Adding to the chaos is the fact that Utah Attorney General John Swallow stepped down about a month ago amid a scandal involving allegations of bribery and offering businessmen protection in return for favors. The state has since had an acting attorney general, and Gov. Gary Herbert appointed a replacement Monday who will serve until a special election next year.

Peggy Tomsic, the lawyer for the same-sex couples who brought the case, called gay marriage the civil rights movement of this generation and said it was the new law of the land in Utah.

“The cloud of confusion that the state talks about is only their minds,” she said.

Tomsic added she was relieved that Shelby stuck to his ruling and avoided being pressured by a moral or political majority in the state.

Shelby said in Friday’s ruling that the constitutional amendment that Utah voters approved violates gay and lesbian couples’ rights to due process and equal protection under the 14th Amendment. He said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.

Legal scholars speculate that the case could someday be reviewed by the U.S. Supreme Court if the justices decide they want to weigh in on whether state same-sex marriage bans violate the U.S. Constitution.

Tobias, the constitutional law professor, said that’s a real possibility but far from imminent. It will depend on what the appeals court decides and what happens with other court challenges in Nevada, Pennsylvania and Virginia, he said.

“I think the Supreme Court would prefer to not have a national rule and rather let states thrash this out individually,” Tobias said.

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