Friday, December 27, 2013

The Utah Attorney General's office blows it

Andrew Koppelman

An underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General's office in litigating the case.

Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal.  That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.

In Utah, however, the state inexplicably neglected to request a stay before the ruling issued.  That led to a bizarre phone conversation between Judge Robert Shelby and the AG's office, which the judge describes in pp. 5-6 of the transcript of the hearing, here.  The AG's office asked whether a stay would be issued, and the judge properly responded that he had received no request for such a stay and would not consider one until he received a motion in writing.  Given the uncertainty of the outcome, his refusal to issue a stay (and the Tenth Circuit's subsequent, similar decision) is questionable.  It means that some same-sex couples will get licenses of uncertain validity, with human costs that are hard to assess in advance.  But the door to this result was opened by the AG's goof, which put the state procedurally in the wrong at the outset of the appeal.

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