LGBT News Utah to Take Overturned SSM Ban To Supreme Court

I don't think it can even go to SCOTUS.

They ruled that states have their own sovereignty over defining marriage when they struck down that part of DOMA.

They'd have to overturn their last ruling, which isn't happening.

As Utah chose to overturn the ban, they will uphold that ruling, even if it gets there. SCOTUS are smart. They know that if they do anything to do anything other than uphold the ruling the state made, they'd be opening a legal floodgate.

That said, I seriously doubt it WILL get there. Utah overturned the ban. It's Utah's choice, not SCOTUS'.

 

I honestly don't see a stay being issued by the Supreme Court. This would create an almost exact parallel of what happened in California with effectively three classes of citizens: opposite sex couples who can get married, same sex couples married before the stay, and same sex couples who are denied marriage rights. This would have Utah in a really bizarre position where it's both recognizing and not recognizing same sex couples at the same time, and what happens if a same sex couple who got married wants a divorce? Is that even possible? Or will the lower courts in the state be forced to ignore all issues relating to same sex marriages?

It's a complete legal nightmare. As a result, simply for clarity on the issue, I don't see a stay being issued - effectively keeping same sex and opposite sex couples legally equal in Utah. It's just too much of a headache to do otherwise without taking the full case before the court and basically making the very ruling they wanted to avoid in the Prop 8 case.

The Justices clearly want to let things play out in the states for awhile longer, allowing at least a majority of the states to legalize marriage equality before they take it up... and in truth, this is effectively a gift to them from that perspective.

Since the Justices didn't officially declare a Constitutional right to marriage equality, it's sort of been left as an open question. In particular, how should the existing state bans on gay marriage, such as the one Utah had, be treated?

By refusing to offer a stay the Supreme Court sort of unofficially answers this question, and that answer would be pointing toward a Constitutional right to marriage equality. Other judges in states that have bans on marriage equality can then feel more free to overturn them because of what happened in Utah and the Supreme Courts reaction.

This effectively puts every single state in the country up for grabs, and this is a gift to the Supreme Court because - if their goal is to have a majority of states with marriage equality before the make an official ruling - then this effectively makes this a reality.

I honestly don't see the Supreme Court taking up the issue again until sometime around 2016, but in the mean time I expect every year that passes by to look like 2013 - victory after victory for marriage equality, state after state. By the time the Supreme Court rules on it there will almost certainly be this sense of inevitability and national acceptance of marriage equality... which is exactly what I think Ginsburg in particular desires. The big fear seemed to be that if they made a sweeping ruling for the entire country too soon, that there would be a backlash against the movement as a whole and the situation would look more like Roe vs Wade - a constant and endless battle even to this day.

It's debatable to a degree whether or not this was a necessary move, but I think history will show the more conservative approach taken by the Court was a smart one. I also think that the constant public victories will bleed over into other LGBT legislative causes - such as ENDA... even if ENDA like legislation has to be passed on a state by state basis. Once you've been allowed to legally marry it makes you much more visible, and therefore it's more possible for an employer to fire you for being in a same sex relationship. Things like ENDA, laws preventing housing discrimination, etc. are all already much more popular than marriage equality. Large political victories, particularly if there is a large string of them, have a tendency to really shape how other political battles are fought and won. People - in particular politicians - always love to be on the winning side of things, and this creates a type of political momentum that is difficult to stop.

Basically, the train has left the station for equal rights and protections for LGBT people in the United States, every victory we place under our belt causes that train to accelerate, and we're starting to learn that the train has no breaks. I don't see a plausible scenario in the future where our opponents are going to win a major long lasting political battle, and I think the best they can do at this point is delay the inevitable.

Of course, there is still the difference between LEGAL equality and SOCIAL equality. Social equality is a cultural thing and that's going to take much longer, but having legal equality as well as legal protections will make things so much easier for us.

Anyway, that's just my view as a non-lawyer.

 

They said that's "traditionally" the case but obviously see: Loving v Virginia, and the majority in DOMA mentioned "protected class"

It was inconsistent only because Kennedy wasn't ready to overhaul these bans nationwide. He will once more states come around (possibly even now) or when one of the 4 bigot judges are gone, Kennedy's vote won't even be needed. This is all inevitable. Even scalia conceded that.

 

I highly doubt SCOTUS will take this case on. Frankly I don't think SCOTUS wants to take on any same-sex-marriage-related cases so soon after their landmark rulings in our favor this past summer. On the off-chance that this case does make it to SCOTUS, I'm cautiously optimistic that we could win big.

 

SCOTUS will more than likely not take the case. The reason they chickened out in Hollingsworth was over an issue of standing, or who had the legal right to appeal the case. Since Utah is bringing the appeal to the Supreme Court, this would force SCOTUS to rule on this case, which would likely bring marriage equality across the country. That said, the easy way out for them is to dismiss the lawsuit.

 

Right now the question before the USSC is just if the decision should be stayed until after the district trial on the merits. It will be a few years before the actual case could come before the USSC.

I hope they decline to stay the decision so couples can continue to get married in UT. It'll be a while before the case goes to trial so lots more people can get married. The state has no valid reason to continue discrimination and they aren't harmed in any way by including gay couples in marriage.