The immediate future of same-sex marriage in Utah is unclear, as a federal appeals court decided not to stop a controversial ruling that legalizes same-sex marriage in Utah before an appeal can be considered. U.S. District Judge Robert Shelby, the federal trial judge in Kitchen v. Herbert, refused to issue a stay pending an appeal of his Dec. 20 decision holding that traditional marriage laws are “irrational” and struck down a law banning same-sex marriage.
Shelby’s decision came on the heels of another ruling from Utah’s federal court on Dec. 13, declaring a ban on polygamy (i.e., marrying multiple partners) unconstitutional.
Shelby–appointed by President Barack Obama–knows that this is a hotly-contested national issue, that he is on the lowest level of the federal judiciary, and that his decision has already been appealed to the U.S. Court of Appeals for the Tenth Circuit in Denver, making his refusal to issue a stay questionable.
As a judge on an inferior court in such a consequential situation, the standard course of action is to maintain the status quo while the appeals court considers the case. It would have been typical for Shelby to stay his own decision the moment he issued it. Instead, his ruling requires Utah county clerks to issue same-sex marriage licenses immediately in what appears to be an effort to force the situation and push the proverbial toothpaste out of the tube so that it cannot be put back.
Utah Acting Attorney General Brian Tarbet evidently understood this, so when he filed a motion requesting Shelby to stay his own decision, he also filed a notice of appeal with the Tenth Circuit along with a motion for an emergency stay before Shelby ruled on the motion before his federal district court. The Tenth Circuit denied the initial motion on Dec. 22, ruling that under procedural rules they cannot issue a stay until Shelby rules on the stay motion before him, because Utah “does not seek a stay pending appeal, but rather a stay pending the district court’s decision on their stay motion. But the appellate and local rules contemplate only a motion for stay pending appeal.”
On Dec. 23, Shelby denied the motion to stay his decision, so the matter went back before the Tenth Circuit for a true stay pending appeal. On Christmas Eve, a two-judge panel of the Tenth Circuit denied that motion as well.
The two judges are Robert Bacarach, appointed by Obama, and Jerome Holmes, appointed by George W. Bush. Like Shelby, Bacarach is a well-known liberal.
Some media outlets may use the fact that Holmes was appointed by Bush to suggest that same-sex marriage is an issue where both Democrats and Republicans agree. But that misstates this issue, as Holmes has proven to be no conservative. At minimum he is a moderate, and the evidence is accumulating that he is a closet liberal in the mold of retired Supreme Court Justice David Hackett Souter.
In 2010, in American Atheists v. Duncan, the Tenth Circuit held that roadside crosses commemorating Utah state troopers who lost their lives in the line of duty violate the Establishment Clause of the Constitution. The crosses were erected by the Utah Highway Patrol Association, which is a private group dedicated to supporting state troopers. The only government involvement was that the state issued permits to the association to erect and maintain these crosses next to public highways, which included the name, badge number, date of death, and other information on these fallen heroes.
A militant atheist group sued to have these memorial crosses removed. A federal district judge sided with Utah, noting that crosses are commonplace grave markers indicating where a person has died, not necessarily religious. This reality is accentuated here, since each of the fallen troopers was Mormon, and in that faith the cross is not used as a religious symbol.
Nonetheless, a three-judge panel of the Tenth Circuit held that allowing any crosses on a public right of way was an unconstitutional endorsement of Christianity. This decision was considered one of the most hostile decisions in the nation against expressions or displays of faith, one that if it were the standard nationwide would require every headstone bearing a cross at Arlington National Cemetery to be uprooted and every war memorial with a cross to be torn down.
The Tenth Circuit has swung far to the left with Obama’s appointments, rivaling the notoriously-liberal Ninth Circuit in San Francisco. When Utah asked all the judges on the Tenth Circuit to rehear this case in what is called an en banc sitting, that motion was denied. But all the conservative judges on the court dissented, arguing that they would grant the motion because such benign memorial markers do not violate the Constitution.
Holmes was not one of those dissenting judges. His view of faith on public matters does not even allow headstones or grave markers with religious symbols on public land. In that regard, he may be different from Obama’s preferred judges on cultural issues and values. Instead, he becomes yet another example of the reality that Democrats have become completely united in understanding the importance of the courts and preferring activist judges who will impose their policy preferences through legal judgments, while Republicans remain divided on whether they only want judges who interpret the Constitution and laws as written and leave it to elected leaders who answer to the voters to decide public policy.
This week’s panel did order expedited consideration of Kitchen, however, so a decision from the Tenth Circuit should be forthcoming sometime in the first half of 2014. In the meantime, however, same-sex marriage and polygamy are now accepted rights in Utah.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.