Just a tiny figure, rigid and restrained, blue eyes filled with pain…


The decision of the Supreme Court to grant a stay of same-sex marriages in Utah shouldn’t really come as a great surprise, whatever the actual merits of the stay application.

The attorneys from the Utah AG’s office have shown no particular signs of competence. Take, for example this passage from Judge Shelby’s decision denying the State a stay on December 23:

The court had a telephone conversation with counsel from both parties a few hours after it issued its order. The State represented to the court that same-sex couples had already begun marrying in the Salt Lake City County Clerk’s Office and requested to the court to stay its Order of its own accord. The court declined to issue a stay without a written record of the relief the State was requesting, and asked the State when it was planning to file a motion. The State was uncertain about its plans, so the court advised the State that it would immediately consider any written motion as soon as it was filed on the public docket.

Now, that all sounds fairly innocuous but, although I’m not a constitutional lawyer, I’ve been in and out of a few court rooms in my day, and those last two sentences are like a silk-wrapped brick around the ears. When a judge politely asks you exactly when you were planning on actually filing the motion you are seeking, the correct answer is never, ever, “We’re not sure”. My lawyers call that a CLM.

Rachel Maddow blamed it on incompetence,  and I don’t disagree. However, I suspect there may also have been an element of hubris, a misplaced confidence that Shelby (National Guard, Desert Storm, the United States Army Achievement Medal and the National Defense Service Medal; a BA from Utah State and a Juris Doctorate from University of Virginia; a law firm practice in commercial litigation and personal injury; a registered Republican with a wife and two kids, who was endorsed by Orrin Hatch and Mike Lee for his qualifications and his “unwavering commitment to the law” when he was appointed to the District Court, if you believe the wikipedia) wouldn’t do anything so silly as letting the gays get married. Not in Utah, surely.

The AG’s office has spent the last two weeks desperately trying to stick the ferret back in the bag where the ferret don’t want to go. Their stay application to the Supreme Court (which you can find here, along with the couples’ response here) parroted the usual guff – that the same sex marriages occurring in Utah are an “affront” to the rational interest of the State in banning same-sex marriage, because the ban somehow makes straight, married people have more babies, and that the couples seeking to be married are seeking a new right called “same-sex marriage”, rather than the established right of “marriage” which right, they note, the gays are perfectly free to use as long as they marry someone whose genitals revolt them, like in the bible.

Still, on one front they are right – this is a question that the Supreme Court needs to decide and, until they do so, the better position is probably to preserve the pre-decision status quo in Utah, no matter how touching the photos of gay Utahnanians getting hitched, or how entertaining the freakout by the godbotherers about the gays touching marriage and getting dirty fingerprints all over it.

With the stay issue out of the way, one would like to think that we might be able to get back to talking about the substance of Shelby’s decision, at least until that Duck Dynasty guy gets caught cottaging or one of Mitt Romney’s grandkids turns out to be asian.


Shelby’s decision is a good read – simple, cogent prose which makes a no nonsense argument for justice and equal access to rights provided to all citizens under the Constitution.

Shelby first spends a few pages talking about the plaintiff couples – Derek Kitchen and Moudi Sbeity, who own a business making hummus for Utah restaurants, and who look very cute together; Karen Archer and and Kate Call, a doctor and a businesswoman who flew to Iowa to get married on their own, standing next to their suitcases, because Karen is very ill; and Laurie Wood and Kody Partridge, English teachers in love, who like drinking pina coladas in the rain – nice, ordinary people who love each other.

Next, he looks at the Supreme Court decision in Windsor, which overturned DOMA. In Windsor, the Supreme Court said that the federal government cannot deny the benefits of marriage to a same-sex couple married under State law, as this violates their Fifth Amendment rights not to be “deprived of life, liberty, or property, without due process of law”.

Utah’s counsel argues that Windsor is therefore all about states’ rights (’cause you know, what isn’t?), even though the Tenth Amendment isn’t mentioned once in Windsor, and so “the federal government cannot intrude upon a state’s decision not to recognize same sex marriage”.

Shelby says, however, that while states’ rights are important, both state statutes and state constitutions are subject to the Fourteenth Amendment requirement that they not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


“The court agrees with Justice Scalia…”. Still makes me laugh.

Next, Shelby deals with Baker v Nelson, a 1971 case in which two men from Minnesota argued that the State was constitutionally required to allow them to marry. A Minnesota court found that the law didn’t violate the Fourteenth Amendment, and the Supreme Court summarily dismissed the matter “for want of a substantial federal question”.

Utah argues that Shelby is bound to follow the Baker decision, and dismiss Kitchen as there is no substantial federal question. Shelby’s response is essentially, “Um, have you missed the last thirty three years?” (which, in Utah, is quite possibly a dumb question). In that period, the Supreme Court has decided that individuals have protection from discrimination on the basis of sexual orientation (Romer v Evans) and can do what they want with their bits in private (Lawrence v Texas), and our collective understanding of homosexuality has moved from “psychological disorder” to “that sweet couple next door with all the cats”. In Windsor, Roberts and Scalia both stated that the result would mean that there would be challenges to state denials of same-sex marriage. So, no.

Then Shelby looks at the due process right. The Due Process Clause, he says, provides protection for a number of rights, some listed in the Constitution, and others which are not, such as the right to marry. The Supreme Court has found that marriage is a fundamental right, closely associated with rights to liberty, privacy and association, and has struck down laws which improperly intrude upon it (most notably in Loving v Virginia).

Shelby proceeds to stomp on every stupid argument made by the State (and almost every wingnut ever).

The State argues the gays are free to marry – they can marry someone with opposite parts and procreate just like God intended. Shelby says that that this is a dumb argument, that “this purported liberty is an illusion”, as marriage is about much more than just procreation – it’s about choice and privacy and dignity and companionship. He also notes that the AG’s office failed to challenge any of the evidence given by the couples that the ban harmed them because they could not develop an intimate bond of marriage with a person of the opposite sex. Good job, fellers.

The State argues that the couples are seeking a new right called “same-sex marriage”, and the couples can’t show (as required) that this new right is “deeply rooted in this Nation’s history and tradition” because gay. Shelby again refers to Loving – the Supreme Court in Loving didn’t find a new right to interracial marriage, just that people of different races were entitled to access the existing right of marriage, which 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.

The State argues that the right to marry cannot mean the right to gay-marry because the words of the Constitution must have the meaning they had back when we all shat in pots, owned other people, and died of syphilis and smallpox. No, says Shelby – the Constitution allows us to make decisions based on new knowledge, such as our knowledge of what it means to be gay or lesbian and to want a committed, loving relationship with someone of the same sex.

“The court, and the State,” he says, “must adapt to this changed understanding.”

This, of course, gives Shelby another chance to give Fat Tony a poke:

Litchen 2

Moreover, says Shelby, the State can only pass a law that restricts this fundamental right provided the law is “narrowly tailored to serve a compelling state interest”, such as laws controlling the age at which someone may marry or preventing marriage where someone is not mentally competent or is in prison for life.

Kitchen 12

Shelby’s analysis on the equal protection right is equally forthright.

The Fourteenth Amendment requires that states do not deny to any person within their jurisdiction the equal protection of its laws. Where a law interferes with the exercise of a fundamental right (like marriage), it must be carefully scrutinized, although the level of scrutiny depends upon the class of people the law affects.

Shelby suggests that the Utah laws would fail the “heightened” scrutiny test which applies to state laws which discriminate on the basis of sex – that the law must be substantially related to an important governmental objective. However, he says that he doesn’t need to decide whether that is the case because the laws also fail the most basic level of scrutiny – that is, that they must bear a rational relation to some legitimate end.

Here, of course, the State rolls out the usual argument, backed up with the usual bogus research – extending the benefits of marriage to opposite sex couples leads to more babies being raised in nuclear families, and nuclear families are so much better than all those other crappy families. Shelby says that the attorneys for the State have missed the point …

Kitchen 3

… and that they cannot show any rational basis upon which banning same-sex marriage provides any incentive to opposite sex couples to marry and have children within wedlock.

Kitchen 5

Kitchen 6Kitchen  7

By contrast, the harm to the couples is clear and, as such, the laws violate the right of equal protection.

Shelby’s conclusion is worth quoting in its entirety:

Conclusion 1 Conclusion 2 ———-

Late last year, Rick Hasen at Election Law Blog wrote a very good article about why it’s likely that state bans on same-sex marriage will be before the Supreme Court sooner, rather than later.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote.  If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases.  I’m guessing they won’t be able to resist. …

… I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits.  There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.

In their stay submissions, the couples in Kitchen provided a listing of 25 current state and federal lawsuits, covering fifteen states, challenging state laws banning same sex marriage.

Sevcik v. Sandoval, No. 12-17668 (9th Cir., appeal filed Oct. 18, 2013), No. 2:12-CV-00578 (D. Nev., filed Apr. 10, 2012); Jackson v. Abercrombie, Nos. 12-16995, 12-16998 (9th Cir., appeal docketed Sept. 10, 2013), No. 1:11-CV-00734 (D. Haw., filed Dec. 7, 2011); Freeman v. Parker, No. 4:13-CV-03755 (S.D. Tex., filed Dec. 26, 2013); Latta v. Otter, No. 1:13-CV-00482 (D. Idaho, filed Nov. 8, 2013); DeLeon v. Perry, No. 5:13-CV-00982 (W.D. Tex., filed Oct. 28, 2013); Tanco v. Haslam, No. 3-13-1159 (M.D. Tenn., filed Oct. 21, 2013); Geiger v. Kitzhaber, No. 6:13-CV-01834 (D. Or, filed Oct. 15, 2013); Palladino v. Corbett, No. 2:13-CV-05641 (E.D. Pa., filed Sept. 26, 2013); Bradacs v. Haley, No. 3:13-CV-02351 (D.S.C., filed Aug. 28, 2013); Harris v. McDonnell, No. 5:13-CV-00077 (W.D. Va., filed Aug. 1, 2013); Bourke v. Beshear, No. 3:13-CV-00750 (W.D. Ky., filed July 26, 2013); Obergefell v. Kasich, No. 1:13-CV-00501 (S.D. Ohio, filed July 19, 2013); Bostic v. McDonnell, No. 2:13-CV-00395 (E.D. Va., filed July 18, 2013); Jernigan v. Crane, No. 4:13-CV-00410 (E.D. Ark., filed July 18, 2013); Whitewood v. Wolf, No. 1:13-CV-01861 (M.D. Pa., filed June 9, 2013); Bishop v. United States, No. 4:04-CV-00848 (N.D. Okla., filed Nov. 3, 2004); Fisher-Borne v. Smith, No. 12-CV- 00589 (M.D.N.C., filed June 13, 2012); DeBoer v. Snyder, No. 12-CV-10285 (E.D. Mich., filed Jan. 23, 2012); Bassett v. Snyder, No. 2:12-CV-10038 (E.D. Mich., filed Jan. 5, 2012); Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct., filed July 1, 2013); Brinkman v. Long, No. 2013-CV-32572 (Colo. Dist. Ct., filed Oct. 30, 2013); Ky. Equality Fed’n v. Beshear, No. 13-CI-01074 (Ky. Cir. Ct., filed Sept. 10, 2013); Commonwealth v. Clary, No. 11-CR-3329 (Ky. Cir. Ct., motion for invocation of marital privilege filed June 6, 2013); Donaldson & Guggenheim v. Montana, No. BDV-2010-702 (Mont. Dist. Ct., filed July 22, 2010, amended complaint filed July 15, 2013); In re Marriage of J.B. and H.B., No. 11-0024 (Tex., argued Nov. 5, 2013); State v. Naylor, No. 11-0114 (Tex., argued Nov. 5, 2013).

That list is only going to get longer.

The great thing about Shelby’s decision is that it strips the argument back to its basics – Marriage is, and should be, a fundamental right, and the Jesus-jumpers cannot show, no matter how hard they try, it is rational to believe that if we stop the gays getting married, and all wish really hard, the marriage fairy will sprinkle her magic pixie dust of pregnancy and responsible parenting all over us.

Even if the Utah AGs Office manages to find some competent attorneys in the next few weeks and months, they, and all of their friends, are still slapping the Maybelline on a particularly hairy old pig and then trying to roll it up a hill.

Even if the Supreme Court decides that states can restrict marriage to straight people, whether because Kennedy or Ginsburg or Breyer believe in gradual change, or because Scalia has Kennedy rubbed out and makes him sign his majority judgment Weekend At Bernie’s style, the list of states that deny their citizens the right to marry because of who they love is going to keep getting shorter and shorter, and that pig is going to get hairier and heavier and orneryer, and there ain’t that much lipstick in the world.

Even Tony Scalia knows it.

Now, if you’ll excuse me, I’m going to a Liberal Party fundraiser tomorrow and I have to bake that nice Mr Abbott a batch of my finest blueberry and exlax® muffins.

[Titian – Sacred and Profane Love.]

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