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Bench Memos

NRO’s home for judicial news and analysis.

Judicial Recklessness in Utah



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One point on which all sober legal minds ought to be able to agree, irrespective of their different positions on same-sex “marriage”, is that a single federal district court decision ought not be allowed to override the marriage laws of a state. Yet that is exactly what federal district judge Robert James Shelby is trying to achieve by his astounding refusal to issue a stay pending appeal of his ruling last Friday that Utah’s definition of traditional marriage violates the federal Constitution.

If federalism principles are to be taken seriously, then Utah’s fundamental interest in its longstanding definition of marriage ought to have dominant weight in any consideration of the factors relevant to granting a stay pending appeal of the federal court’s decision. To be sure, there are interests on the other side. But unless one is to prejudge the outcome of the appeals process, those interests are weak: same-sex couples who have purported to marry in Utah since last Friday have done so under a cloud of uncertainty. If the Tenth Circuit or the Supreme Court reverses Judge Shelby’s merits ruling, their marriages will be void ab initio.

What Judge Shelby (a recent Obama appointee) is plainly trying to do is sow chaos in order to alter the terrain while the appeal of his ruling is pending. That’s a grossly irresponsible course of action, and the Tenth Circuit—or the Supreme Court—should put a quick stop to it.

More to follow.



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