Utah Plaintiffs Strongly Counter State’s Supreme Court Stay Application in Marriage Equality Case

Today the attorneys for the plaintiffs in Kitchen v. Herbert, the Utah marriage equality case, filed their opposition with the Supreme Court to the state’s application for a stay of the trial court ruling.

Under the trial court ruling, issued on Dec. 20, same-sex marriages began happening in Utah that date.  On December 23, the trial judge, Robert Shelby, denied the state’s motion to stay his ruling pending appeal.  Two days later, a panel of two 10th Circuit judges rejected the state’s request to stay the ruling, finding a stay was “not warranted” under the rules applied by the Circuit to such requests.

A week later, on December 31, the state filed an application with Justice Sonia Sotomayor, the Supreme Court Justice assigned to hear applications out of the 10th Circuit, seeking a stay.  The state argued that the district court’s decision was an “affront” to the dignity of the state, imposing irreparable harm, and that under Supreme Court precedents they were entitled to a stay if there was a fair possibility that they would win in their appeal on the merits and that the Supreme Court was likely to hear the case if the state lost its appeal in the 10th Circuit.

The Memorandum in Opposition filed today by Magleby & Greenwood, P.C., the Salt Lake City firm representing the plaintiffs, blows the state’s arguments out of the water, in the opinion of this writer.  They argue persuasively that the state’s Application mischaracterized the Supreme Court’s standard for a stay in this kind of situation, where an appeal is pending before the court of appeals, which has refused to stay the trial court’s order, and the court of appeals has expedited consideration of the state’s appeal.  They show that the Supreme Court imposes a very high burden on a party requesting a stay under such circumstances.  It’s not enough to show that the state might win their appeal.  They have to show that the court of appeal’s rejection of their request for a stay was “demonstrably wrong”.   They also devote a large part of the memorandum to showing how the district court’s decision was consistent with the developing case law under the 14th Amendment, and thus likely to be upheld on appeal by the 10th Circuit.  Also, noting the plethora of other marriage equality cases now under way around the country (including, most notably, the Nevada case now pending before the 9th Circuit), they point out that it is entirely speculative that the Supreme Court will review this case if the state loses its appeal in the 10th Circuit.  It is just as likely that one of the other cases will be the one to go up to the Supreme Court, if indeed the Court decides to grant review.  They show that the state’s argument that the Supreme Court will surely review a lower court decision striking down a state law as unconstitutional was based on old cases that have been superseded by a statute enacted by Congress rejecting the idea that the Supreme Court should automatically review lower court decisions striking down state laws.

They also show that the state misrepresented the academic literature on parenting by gay couples, calling Utah’s characterization as “false” — you can’t get more confrontational than that.

If the Supreme Court is going to decide this application based on “the law,” I think they will deny the stay.  If they treat this as more of a political issue, it is more difficult to predict, but the plaintiff’s opposition memorandum strikes me as more persuasive than the Application filed by the state.   Justice Sotomayor could decide the application on her own, or she could refer it to the full Court.

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