Some further thoughts on Judge Robert J. Shelby’s astounding refusal to stay his ruling against Utah’s marriage laws pending appeal:
1. In the Prop 8 case, federal district judge Vaughn Walker refused to stay his ruling against Prop 8 pending appeal. Recognizing that Walker’s effort to alter the status quo was so manifestly beyond the bounds of reasonable judgment, the Ninth Circuit panel (with two liberal Clinton appointees) stated in one simple sentence that it was granting the motion. The Tenth Circuit should take similar action to thwart Judge Shelby’s recklessness.
2. Unlike Shelby, Walker at least had the sense to stay his judgment until the Ninth Circuit could decide whether a stay pending appeal should be issued. (See last paragraph of his order.) Shelby, in other words, has already been more reckless than Walker by inviting same-sex “marriages” to occur before the Tenth Circuit could decide whether a stay pending appeal is warranted.
3. To amplify on my earlier point that the purported marriages since Friday will be void ab initio if Shelby’s merits ruling is reversed on appeal: It’s important to have in mind that the situation in Utah is very different from the situation that prevailed in California between the time of the state supreme court ruling striking down California’s definition of marriage in May 2008 and the adoption of Prop 8 in November 2008. At all relevant times, Utah law has stated that marriage is the union of one man and one woman. By contrast, the state law in California, at least as construed by the state supreme court, allowed same-sex marriages between May 2008 and November 2008, and Prop 8 was plausibly construed not to invalidate those marriages.