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The Tenth Circuit Speaks, Kinda Sorta

December 27, 2013

It’s worthwhile to remember once in awhile that an important reason our constitution created a system of federal courts, rather than relying entirely on state court systems, was to eliminate the “home court advantage” of having judicial disputes resolved  in one’s own state courts. So a Vermonter could sue a New Yorker in a court presided over by a judge appointed by neither Vermont nor New York, but by the federal government. The federal constitution is a national document that should be interpreted and applied according to national criteria.

The federal court system is re-proving the soundness of that constitutional decision in Utah. Last week, Utah became the 18th state to allow same-sex marriage, by virtue of a decision issued by a federal judge. Before Utah, only in California was same-sex marriage effected by federal court order – in the other 16, same-sex marriage came about by state legislation, state judicial decision, or state referendum. Those states all much more socially liberal than Utah, which allowed their state governmental systems to legalize same-sex marriage in one way or another.

Nobody thought that Utah would be next; Utah is way too conservative to be at the top of anyone’s list. But the federal district court in Utah is not beholden to Utah’s political or social conservatism. That court ruled last Friday that limitation of marriage to opposite-sex couples denies equal protection and due process rights to same-sex couples. The ruling was issued by Judge Robert Shelby, an Obama appointee.

Utah state officials quickly appealed. On Tuesday, the Court of Appeals for the Tenth Circuit denied Utah’s motion to stay the lower court decision pending the outcome of the appeal. As far as I know, this is the first federal court of appeals statement on same-sex marriage after the Supreme Court’s decisions on the subject last June.

In a way, the court of appeals decision is less a statement than a mumble. The court’s decision on the stay motion ran just eight sentences, and only three of those were substantive. The first laid out the well-established criteria for a stay pending appeal: the appealing party must prove that it is likely to win the appeal, that it will suffer “irreparable harm” if the lower court’s order remains in effect pending the appeal, that the other party will not suffer “irreparable harm” if the lower court’s order is stayed pending appeal, and that the “public interest” favors a stay pending appeal.

In the next sentence, the court noted that “the first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm.”

Last, the court concluded completely without elaboration that in light of those factors “a stay is not warranted.”

Since the appealing party must prove all four factors to win a stay motion, the court’s non-explanation leaves us with no explicit answer to the question which factor or factors the court found to be unsatisfied by Utah’s motion.

As a career-long employee of the executive branch of government, I’ll pause here for a brief grinding of the ax: this is one instance of many in which the judicial branch of government does not hold itself to the same standards it routinely applies to the executive branch. Were an executive disapproval to be based solely on the unilluminating declaration that approval was “not warranted,” the judicial reaction would be to send the decision back to be re-done, if not to overturn it altogether. Why the judiciary thinks it gets to be less transparent than it requires the executive to be, I have no idea. But I digress.

Despite its lack of transparency, the court of appeals’ decision still sheds some light – let’s call it translucent. That’s because in a case like this one, the four factors are more closely related than, say, in a commercial dispute. Here’s what I mean.

Let’s assume that the court of appeals thought that Utah is not likely to succeed on its appeal – meaning that the appeal is likely to end up with a decision that same-sex couples have a constitutional right to marry. That means, of course, that the court found that Utah failed to show that it is likely to win the appeal. But it also means that the court probably found that Utah failed to satisfy the other three factors. If same-sex couples enjoy a constitutional right to marry, then allowing them to marry while the appeal is pending does not inflict any legally recognizable harm on Utah; not allowing same-sex couples to exercise their constitutional right inflicts real harm on the couples; and the public interest is not served by barring people from exercising their constitutional rights.

The converse reasoning would also apply. If the court thought that Utah is likely to win the appeal, and therefore that same-sex couples do not have a constitutional right to marry, then denying them the right to marry pending the appeal does them no legally recognizable harm, whereas allowing them to marry pending the appeal risks creating all kinds of confusion if the court were ultimately to rule that Utah should not have been required to marry the couples in the first place.

So while the court’s cryptic mumble sheds little light on the details of its thinking, it does shed light on the court’s overall view of the case, and that view is translucently favorable to the prospects of same-sex marriage.

It’s worth noting that the judges who denied the stay motion were Jerome Holmes, appointed by the second President Bush, and Robert Bacharach, appointed by President Obama. I don’t know anything about Judge Holmes in particular, but President Bush’s judicial appointees are not known generally for socially liberal activism. This suggests that the Supreme Court’s decisions last June gave focus to the constitutional questions of marriage equality.

The court of appeals promised an “expedited” briefing schedule, a minor concession to the possibility that Utah will win its appeal. By expediting the appeal, the court reduces the confusion that would be created by first allowing same-sex marriage and then disallowing them (as happened in California in 2008).

Still, in court of appeals-speak, an “expedited” decision could easily be six months away. Meanwhile, Utah officials are working on a request that the Supreme Court stay the district court’s order pending appeal. Supreme Court stay motions are filed with the justice who is assigned to oversee the circuit in question. The Tenth Circuit is overseen by Justice Sonia Sotomayor, who seems unlikely to grant a stay. Justice Sotomayor has the option to refer the request to the full Court, where, as is so often the case, it all comes down to Justice Anthony Kennedy.

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