It all goes back to earlier this year when the US Supreme Court (USSC) scrapped part of the US federal government's 1996 Defense of Marriage Act (DOMA). The USSC could have thrown it out on the basis that it went against the 10th Amendment, which reserves certain powers, such as marriage, to the States themselves. It did not do this; instead held that it violated the 5th Amendment of the US Constitution on due process. This meant that the USSC's ruling could be cited in opposition to bans within the states themselves.
The Utah ruling is a fun and easy read: effectively Utah was claiming "The public have said 'Homos, eww!'"; "It's tradition"; and "Gays can marry people of the opposite sex" (no, really, the Judge refers to this argument made by them in his ruling!). Shockingly, the Judge held that these are not valid reasons to ban gay couples from marriage.
Based on the USSC's ruling, the gay-marriage-ban part of Utah's constitution was also held to violate the 5th Amendment, and because the US Constitution overrides conflicting State constitutions, that specific part of Utah's constitution is unenforceable.
Had the USSC ruled instead that DOMA went against the 10th Amendment, there is a good chance that Utah's ban would still be in place, on a states'-rights basis.
What happens next?
Utah has said that it will appeal, because it wants to protect "traditional marriage", i.e. 1-man & 1-woman only. For a state run by the Mormons that's an odd position to take...
In the meantime, Utah is trying to get a stay of the original ruling. They forgot to get a stay at the time of the original hearing, and so the Judge's ruling went into immediate effect. As a result, lots of gay couples within Utah are now getting hitched.
Utah now has to try and convince the courts that a stay is required. At first they went to the original judge, but he turned them down; they went to the 10th Circuit (the appeal court), who at first told them to do their job properly, because they had not done a formal application. Once a proper application had been submitted, the appeal court also rejected a stay. They are now trying to get a stay from the USSC, who it seems will operate under the same rules that apply in the appeal court.
However, as someone pointed out on Fark, I do not think that they will be able to get one.
In order to obtain an injunction, under r. 8.1 of the 10th Circuit Court, as well giving supporting statutes and caselaw, Utah has to show that:
- There is a good chance that their appeal will succeed;
- Utah desperately needs a stay;
- The gay couples won't be negatively impacted by a stay; and
- There is a pressing public need for a stay
What is the likely outcome?
What is worth keeping note of, is the fact that the appeal court has said that it is perfectly happy to hear an appeal of the ruling, and it will schedule one for some point next year. In the meantime, and unless the USSC grants a stay, gay couples can get married within Utah.
If the appeal court overturns the original ruling, which their rejection of the stay suggests is unlikely, then Utah will once again ban gay couples from being married. However, as in California while Prop 8 was working its way through the courts, it is very unlikely they they will "unmarry" any couples that have got hitched in the meantime.
Should they uphold the original ruling, then that effectively kills-off similar laws in the other states that the appeal court covers, such as Wyoming; Kansas and Oklahoma. Similarly, should either side appeal to the USSC, which then upholds the original decision, that's the end of gay-marriage bans in the US.
As above, DOMA was thrown-out on discrimination grounds. Therefore, the appeal court will almost certainly feel bound by the USSC's ruling, like the original judge. As a result, the USSC will have to go back on its original position, and so hold that gay-marriage bans don't violate the 5th Amendment, and, frankly, it would need a fucking good reason to do so. This is why it won't happen.
Overall, that's basically the end of Utah's gay-marriage ban, and possibly those in other areas covered by the appeal court.
In addition, given the Judge's reasoning, his judgment is likely to be cited in gay-marriage cases in other US states, even where the appeal court doesn't have jurisdiction.Tweet