Thoughts on the Latest in the Utah Same Sex Marriage Litigation

People following the litigation over same sex marriage in Utah have gotten good taste of the real thing: opposing sides villainizing each other, long periods of no progress followed by short bursts of action, and a convoluted procedural path that both sides try to reduce to an unrealistically clear arc ending conveniently in their absolute victory.

Joking  aside (there was a *little* bit of humor there), this has been an action-packed week, and people can be forgiven for being a more than a little confused about where we are at this point.

Being the blogger-driven-by-insecurity-within-to-provide-an-unsolicited-perspective that I am, I thought I’d offer a few thoughts about where things stand and where I think they are likely to go:

Judge Robert Shelby, who struck down Amendment 3 and declined to issue a stay pending appeal.

(1) There are at least 3 separate cases, five courts, and 20 judges/justices directly involved at this point:

  • Case 1, Kitchen v. Herbert, the original case in which Judge Shelby ruled that Amendment 3 was unconstitutional;
  • Case 2, Utah Dep’t of Health v. Stone et al., a petition for emergency relief filed in the Supreme Court by the Department of Health (DOH) to get clarification from the Court as to whether the DOH could alter a birth certificate with the United States Supreme Court (SCOTUS) stay in place; and
  • Case 3, Evans v. State of Utah, et al., a case filed by a number of same-sex couples who were married in the period between Judge Shelby’s ruling and when the SCOTUS stayed Judge Shelby’s ruling.

(2) How did we get where we are?

When Judge Shelby declared Amendment 3 unconstitutional, he declined to stay his ruling pending appeal, meaning that same-sex marriage became instantly legal in Utah.  The state immediately sought a stay from Judge Shelby, who denied them twice.  The state then sought a stay from the Tenth Circuit Court of Appeals, which also denied their request.  As a last resort, the state then sought a stay from the SCOTUS, which granted their request.  Prior to the time that the SCOTUS granted the state’s request for a stay, same-sex marriage was legal in Utah for 17 days, during which time approximately 1,000 same-sex couples were issued licenses and married.

Judge Dale Kimball, who entered a preliminary injunction in favor of the plaintiffs seeking to compel state recognitions of their marriages.

After the SCOTUS issued its stay, the state determined that it would not, while the stay was in place, provide any further recognition (beyond simply recognizing the face of their marriage) of the same-sex marriages that had been performed prior to the time the stay went into effect.  So, for example, spousal hospital, inheritance, and future tax privileges were denied to the married same-sex couples, along with all other prospective forms of legal recognition . . . leading us to cases number 2 and 3.

Evans (Case 2) was filed by the same-sex couples to obtain recognition of their same-sex marriages by the state based on the fact that their marriages were performed while Amendment 3 was not in effect pursuant to Judge Shelby’s injunction.  Judge Kimball ruled in Evans yesterday afternoon (May 19, 2014), entering a preliminary injunction ordering the state to recognize the same sex marriages performed prior to the time that the SCOTUS’ stay went into effect.  Judge Kimball concluded that there was a strong likelihood that the plaintiffs would prevail on their claims for deprivation of property (in the form of a right to recognition of their marriage) without due process of law at trial (yes, that means, technically this case isn’t over, the injunction is “preliminary,” but in these types of cases, a win on a preliminary injunction is, for all intents and purposes, a win in the particular case).

Case 3 was filed by the Utah Department of Health (DOH) as a collateral action to an existing same-sex adoption case, in which Judge Stone (a Utah district court judge) ordered revision of the adopted child’s birth certificate based on finalization of the adoption (standard procedure).

The catch?

The adoptive parents are a same-sex couple, and Utah law, prior to Judge Shelby’s ruling and after the SCOTUS stay prohibits any state recognition of a same-sex marriage.  After the SCOTUS stay went into effect, the DOH sought clarification from the Utah Supreme Court as to whether Utah law, with Amendment 3 back in effect, permitted the DOH to amend the birth certificate.

I want to pause here and note that, while same-sex marriage supporters (and, to an extent, the media) have presented Case 3 as an attempt by the Attorney General’s office to stop or undo same-sex adoptions, it’s important to realize the Attorney General was not a party to the case, did not initiate the case, and did not seek to undo the adoption.  The case was filed by the DOH as to clarification regarding the direction it should proceed given the district judge’s order and the stay from the Supreme Court.

The Justice of the Utah Supreme Court, which granted a petition for extraordinary relief and stayed reformation of a birth certificate pending briefing and argument regarding the effect of the SCOTUS stay.
The Justice of the Utah Supreme Court, which granted a petition for extraordinary relief and stayed reformation of a birth certificate pending briefing and argument regarding the effect of the SCOTUS stay.

(3) Where do things stand right now?

Judge Shelby’s ruling was stayed by the SCOTUS on January 6, 2014, and the stay remains in effect.  Same-sex marriage is not legal in Utah.  Per the terms of the SCOTUS order, Judge Shelby’s ruling is stayed pending “final disposition of the appeal by the Tenth Circuit Court of Appeals.”

This means that, upon the Tenth Circuit rendering its decision, if that decision is adverse to the state (as it is almost sure to be) the state will have to seek a stay first from the Tenth Circuit (which could be denied given the court’s prior denial, or which could be granted based on the subsequent example of the SCOTUS), and then, if necessary, again from the SCOTUS (which seems likely to be granted based on the Court’s prior decision).

However, as to same-sex marriages already performed, Judge Kimball of the federal district court has now ordered the state to provide recognition of the same-sex marriages performed after Judge Shelby’s order and the entry of the SCOTUS stay.  While Judge Kimball denied the state’s request to stay his ruling pending appeal, he has given the state 21 days to seek a stay from the 10th Circuit (and, presumably, the United States Supreme Court).

As to Case 3, the Utah Supreme Court has accepted the petition for relief, stayed the order requiring reformation of the birth certificate, and plans to set a briefing and argument schedule shortly.

The most likely result is that Judge Shelby’s order remains stayed pending either:

  • (1) disposition of the case by the SCOTUS, or
  • (2) rejection by the SCOTUS of a petition for certiorari.

Judge Kimball’s order could be stayed by the Tenth Circuit or SCOTUS, but I think the more likely result is that it is not stayed.

As to Case 3, this leads us to point #4 . . . .

(4) What does Judge Kimball’s ruling in Evans mean in the DOH case?

Judge Kimball’s decision raises very interesting questions regarding jurisdiction and authority.

If you’ll pardon the legal lesson, I’ll attempt to explain:

In the United States’ federal system, we have multiple courts of last resort for each state, each of which bind the other.  The SCOTUS is supreme in its ability to interpret and declare federal law, while the supreme courts of each individual state are supreme in their ability to interpret and declare state law.  Therefor, the Utah Supreme Court is bound by the SCOTUS’ interpretation of the Constitution and federal statutory law, which is, by virtue of the Supremacy Clause, supreme over all inconsistent state law.

Conversely, the SCOTUS is bound by the Utah Supreme Court’s interpretation of Utah law.

Had the SCOTUS, rather than the Utah federal district court, issued Judge Kimball’s ruling, Case 3 would be over, because the SCOTUS would have found a federal constitutional violation in the state’s refusal to recognize same-sex adoptions.  No matter what the Utah Supreme Court determined state law to be, the federal constitutional violation would trump the state law ruling.

However, we don’t yet have a SCOTUS ruling; we have a ruling by a federal district court judge, which does not bind the Utah Supreme Court.  Therefore, we’re in a potentially very interesting legal situation regarding Cases 2 and 3.

While Case 2 is being appealed, the Utah Supreme Court could change course, dismiss the petition for relief as improvidently granted and rescind the stay, in which case, the federal order stands pending appeal (and absent a stay from the Tenth Circuit or the SCOTUS) and the state would be required to recognize the already-performed same-sex marriages.

But the Utah Supreme Court could also elect to leave its stay in place regarding the birth certificate and hear argument on the DOH petition.  It could even grant the petition, holding that Amendment 3 should be applied retroactively pending resolution of the Kitchen case and the birth certificate should not be reformed.

Thus, the state is in a very interesting situation that it would seem only a final decision on Amendment 3 by the United States Supreme Court in the Kitchen case could resolve.  In practice, however, courts do not like to avoid putting litigants in this type of situation.

I suspect that the Tenth Circuit and/or the Utah Supreme Court, in their consideration of the distinct, though related, cases before them, would work to avoid this possibility in their decisions.

Nonetheless, isn’t it fun for a judicial quirk like this to be placed front and center in the news?? 🙂

(5) What will be the effect of the rash of decisions legalizing same-sex marriage since Judge Shelby’s order and the likely disposition of the Kitchen case by the SCOTUS?

I think it will have an effect.  Given the accelerating momentum in favor of legalizing same-sex marriage, and the United States Supreme Court’s prior decision in the Windsor case (upon which the current raft of cases rest), I now think it quite unlikely that the SCOTUS will reverse things and put the same-sex marriage bans back in effect.  Even if it does, I would not be surprised at all, if the reinstated bans were removed legislatively in short order in the vast majority of jurisdictions.  This really does seem like the case where opponents of same-sex marriage are left trying to shut the barn door after the horses have escaped.

(6) My personal opinion is that Judge Shelby should have stayed his order pending appeal.

I know I’ll catch flak on that point, but I feel as though it’s the normal order of things and the confusion we see in this case is the result.  However, at this point that ship has sailed and the case must be dealt with as it stands. I don’t think that, had Judge Shelby stayed his order pending appeal, it would have had any effect on the ultimate outcome of the case.

(7) Finally, a personal appeal — can we stop lionizing and demonizing judges.

Please??  The constant swing between adulation and contempt reminds me of a bad teenage romance novel.  I know this is important, folks.  So do the judges.  And they’re working to do their job.  Let them be.

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