Utah Officials Ask Court to Stop Same-Sex Couples Marrying

“There’s safety in numbers/And the more the merrier am I”

The same day U.S. District Judge Robert Shelby held that Utah’s ban on recognizing marriages of same-sex couples was unconstitutional (in Kitchen v. Herbert, addressed here), the state’s Governor and Attorney General asked him to stay his decision.  (Interestingly, the third named defendant, the Clerk of Salt Lake County, did not join in this motion.)  If successful, their motion for a stay of the judgment pending the appeal they said they’ll file would probably put a stop to same-sex couples marrying in Utah at least until a ruling on the merits by the federal appellate court (the U.S. Court of Appeals for the Tenth Circuit).  It seems unlikely Judge Shelby would grant the stay, and if the Tenth Circuit does, it probably would not be because of the legal reasoning in the state official’s motion, which is surprisingly weak.

When a loser in federal court asks for a stay of the court’s judgment in order to preserve the status quo during an appeal, Tenth Circuit rules require the court considering such a motion to consider four factors:  “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay or injunction is granted; and (d) any risk of harm to the public interest.”  The state official’s arguments on these points in their six-page motion are mighty slim.  I recognize that they filed this motion the same day the trial judge ruled in the case, but they should have been prepared for the possibility that he would rule against them and not stay his judgment.  (After all, that’s what Chief Judge Vaughn Walker did in the federal litigation that held California’s Proposition 8 unconstitutional.)

It can be hard to convince judges that they made a mistake in their rulings.  But the state officials did not even make much effort here.  Their position basically was a safety-in-numbers argument:  we’ve got lots of cases we cited upholding laws excluding same-sex couples from marriage.  Yet it is not enough to say “many other courts have concluded that the opposite-sex definition of marriage rationally serves society’s interests in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by their biological mothers and fathers.”  Not when those cases were decided before the Supreme Court’s landmark decision in United States v. Windsor at the end of June 2013.  And not when this court’s 53-page decision explained why those arguments are (to use a technical term) bogus.  And the state’s closing observation, that in most states with marriage equality it has “been accomplished through the democratic process,” is without more a non sequitur in a section of a motion devoted to the legal correctness of the ruling they seek to stay.

Next, parties seeking to stay a judgment are supposed to show that they will face “irreparable harm” if the stay is denied and the judgment allowed to be operative.  Having failed in the trial court to identify any plausible adverse consequences of letting same-sex couples marry, the state official defendants here did the best they could, offering two injuries.  First, they relied on precedents that say, when a state is enjoined from enforcing its democratically adopted laws, it faces irreparable injury.  That may be true for constitutional laws, but if a law is unconstitutional, the state had no business adopting it, and being enjoined from enforcing it is not much of if any “injury.”  Second, consistent with their narrative in the trial court that the marriage bans were enacted not to hurt lesbigay people but to help all of society, the state officials benevolently suggested that same-sex couples would suffer irreparable injury if allowed to marry “under a cloud of uncertainty” before all appeals were resolved.  The state officials assume that the trial court will be reversed (“when their marriages are declared invalid,” they write (my emphasis)), so this argument as well as the state-cannot-enforce-its-laws argument depend on how likely it is that the trial court will be reversed.  Independently, one might of course think that same-sex couples are in a better position to evaluate for themselves whether the possibility of a future marriage invalidation is more harmful than the reality of continuing in the present with no legal relationship recognition.

On the flip side, people seeking to stay a court’s judgment are also supposed to address the harm to the opposing side if the judgment were put on hold.  Here, the state officials argue that the only harm is delay, and that’s not irreparable, they say.  But if marriage were as symbolically powerful as their ‘responsible procreation’ arguments suggest, delay might be a more serious and not necessarily reparable harm.  Moreover, there are other harms not clearly reparable.  For example, a person might be forced to testify against her same-sex partner, for example, whereas the Utah Rules of Evidence protect spouses from being forced to do that.  Or one party might die, leaving his partner never having been able to marry.

As for risk of harm to the public interest, all the state defendants could muster for this fourth factor was to reassert the claims that the people of the state have a public interest in deciding the contours of state marriage law (again, something true only insofar as their decisions do not violate the Constitution) and that uncertainty about marriage validity harms the public interest.

[UPDATE Mon. Dec. 23, 8:15 a.m.  Over the weekend, the state officials asked the Tenth Circuit appeals court to stay the trial judgment until the trial court rules on their stay motion.  Because they were not actually asking the appellate court to put things on ice until after that court finally rules on the merits, they thought they need not address the four factors above.  But the two Tenth Circuit judges before whom this motion noted that the national and local rules governing the case did not contemplate such a stay order, and so this motion did not comply with the rules.  The ball (the stay motion, in this case) is back in Judge Shelby's court, where arguments are being held as this update is typed.]