Utah marriage news

Much to the surprise of me and most of my friends, a federal judge ruled on Friday that Utah's prohibition on same-sex marriage is unconstitutional.

Also, in an unrelated case, there was recently a surprising ruling having to do with polygamy in Utah.

But there's been a lot of confusion and a little misinformation floating around, so I wanted to clear some stuff up.

First: Utah did not legalize polygamy. Last weekend, a federal judge ruled that Utah can no longer prosecute people for “cohabition”—that is, for “living together in what appeared to be a polygamous relationship,” as an NPR article puts it. But you can still only have one legal spouse at a time.

As for marriage equality: Friday's ruling was a huge and awesome step forward, but it wasn't a final decision, because it's being appealed.

The ruling takes effect immediately, and so some Utahns, including a state senator, are getting same-sex-married right away. Yay!

But in the past, such rulings have almost always been quickly followed by a stay, pending resolution of appeals.

Equality on Trial has some updates on the state of the appeal. Short version: The state has asked the district court's judge to stay his ruling, but it sounds like the court may not decide whether to issue a stay for a few days yet, and during that time weddings are proceeding.

(The state actually had the chutzpah to say that issuing the stay would protect same-sex couples, because without the stay, such couples might get married but would remain uncertain about whether their marriages would be revoked.)

In the Prop 8 case in California, Judge Walker's ruling was appealed to the Ninth Circuit Court of Appeals, which I gather is notoriously liberal. But in this case in Utah, the appeals court is the Tenth Circuit, which I gather tends to be moderate-to-conservative. I have no idea whether that means they're likely to overturn the lower court's ruling or not.

However they decide, though, their decision will almost certainly get appealed to the Supreme Court. Which may decide not to take it, but all this will take time; I suspect that Utah's legal position on this issue won't be settled 'til late 2014 at the earliest. But I could be way off; I'm just guessing.

A few of my friends have noted, with understandable glee, that the district court's decision quotes Scalia's dissent from this year's DOMA case. I'm amused too; I feel like Scalia's gloomy dissents are turning out to be self-fulfilling prophecies. In particular, his dissent in Lawrence v Texas correctly predicted that the majority ruling left anti-marriage-equality laws on shaky ground, and iIrc Judge Walker quoted him in his decision on Prop 8 in California.

Various people have asked how many states now have marriage equality. The answer depends on how you count:

As of Thursday, when New Mexico's state supreme court ruled in favor of equality, sixteen US states (plus DC, plus several Native American jurisdictions) have full marriage equality.

One more, Illinois, has passed a final law to achieve marriage equality, but it won't go into effect until next June or so. I nonetheless count it as an equality state.

And now people are getting married in Utah, so you could count it as eighteen. But I expect a stay to go into effect within the next few days, and the decision could be overturned by either of the two higher courts, so I'm not counting it yet.

So: 17 by my count, but 16 or 18 could also be valid answers.

Btw, not counting Utah, I think ten of those states have achieved marriage equality in the past thirteen months. It's been a remarkable just-over-a-year. Sadly, progress will be much slower for a while, but even so, I'm really pleased.

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