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Keep getting married, Utah

You have at least a few more days till the next court ruling.

RedEquality

A federal judge on Monday allowed gay marriage to continue in Utah, rejecting a request to put same-sex weddings on hold as the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses.

Judge Robert J. Shelby overturned Utah’s ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Shelby’s ruling is far from the end of the legal wrangling on the topic. The state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold, and that court could rule as soon as Monday evening or Tuesday. The same court, in Denver, likely will hear the full appeal of the case several months from now.

In the meantime, the rush on marriage licenses continues for gay couples around Utah.

More than 300 gay couples have obtained marriage licenses since Friday in Utah’s most populous county. On Monday, an estimated 100 licenses were issued in other counties, while some clerks shut their doors as they awaited Shelby’s decision.

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Even if the 10th Circuit grants a stay, the marriages licenses that already have been issued probably will remain valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It’s not entirely certain, however, because Utah’s situation has unfolded differently than other states, and there’s no direct precedent, he said.

The appeals court already has rejected two previous requests from the state due to procedural issues, but it has not yet considered the case based on merits.

Who knows what will happen with the appeals court, but for now the biggest obstacle is recalcitrant county clerks.

Judge Shelby explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties who don’t comply are breaking the law.

In Utah County, the clerk’s office was not issuing same-sex marriage licenses even after Shelby ruled, and they turned away at least three couples. Utah County Clerk Bryan E. Thompson told The Salt Lake Tribune he would wait to see how the 10th Circuit Court of Appeals in Denver ruled on Shelby’s decision before deciding how to proceed.

I hope they come around on their own, because the state sure isn’t going to enforce that requirement. Be that as it may, this is a joyful week for a lot of people in Utah, and I daresay a hopeful one for folks in Texas and other states like it. If it can happen in Utah, it can truly happen anywhere. Take a look at some happy couples here and let your heart grow a size or two.

By the way, Utah wasn’t the only place where the cause of marriage equality was being expanded this week. Via Freedom to Marry, a judge in Ohio has gotten in on the act, too.

A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio’s attorney general said the state will appeal.

Black cited the Supreme Court’s June decision striking down part of a federal anti-gay marriage law, saying that the lower courts are now tasked with applying that ruling.

“And the question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” Black said in reference to the year Ohio’s gay marriage ban passed. “Under the Constitution of the United States, the answer is no.”

Eighteen states and the District of Columbia allow same-sex weddings, up from six before the Supreme Court decision.

Black wrote that “once you get married lawfully in one state, another state cannot summarily take your marriage away,” saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

“When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court,” he wrote.

Black referenced Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.

Go read that Freedom to Marry for analysis of what that means. What I take from it is that it rips a pretty big hole in the state of Texas’ arguments about gay divorce. It sure feels to me like the walls are closing in on the Double Secret Illegal Anti-Gay Marriage Constitutional Amendment. I can only wonder what the reaction will be like from the state GOP when the inevitable happens.

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