Sotomayor, judge-shopping led to gay marriage-limbo in Utah

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wise latinaOne thousand same-sex marriages performed in Utah after a rogue federal judge stuck a finger in the eye of the Church of Latter Day Saints “because he could” are now in limbo. And not only because no one has yet figured our out how lesbians would “consummate” a marriage.

No, it’s because Tenth Circuit Court federal liberal judges were confident they could ignore state and federal precedent given that liberal Democrat and Obama-appointee Sonia Sotomayor is the administrative U.S. Supreme Court justice for that circuit, with the full court in recess for the Christmas holidays. She refused to stay the ruling pending appeal, as is the ordinary jurisprudence dictates  when lower courts break new constitutional ground and/or defy higher court precedence. But somehow in this case, Justice Sotomayor decided to go rogue.

Yet today, the adults returned to the Supreme Court of the United States and issued a stay (apparently unanimously) of the Herbert v Kitchen ruling by U.S. District Judge Richard Shelby that forced clerks of court in Utah to issue marriage licenses to same-sex applicants:

The Supreme Court on Monday morning put on hold a federal judge’s decision striking down Utah’s ban on same-sex marriage, thus stopping a wave of such marriages across the state.  The Court’s order reinstates the state ban and will keep it intact until after a federal appeals court has ruled on it.

The order appeared to have the support of the full Court, since there were no noted dissents.  The ruling can be interpreted as an indication that the Court wants to have further exploration in lower courts of the basic constitutional question of state power to limit marriage to a man and a woman.  Had it refused the state’s request for delay, that would have left at least the impression that the Court was comfortable allowing same-sex marriages to go forward in the thirty-three states where they are still not permitted by state law…

The state had asked for a delay from Justice Sonia Sotomayor, who handles such emergency requests from the geographic region that includes Utah — that is, the Tenth Circuit.  She referred it to the full Court rather than acting alone.

There is no excuse for irresponsible action of the self-described “Wise Latina”, which puts same-sex marriages performed in Utah before the stay in question. We think the Supreme Court coild end up allowing them to stand for federal purposes given the de facto granting of a vested right. But  unless Justice Anthony Kennedy does a reversal of his recent votes in the Proposition 8 case in California, DeVine Law would expect Judge Shelby to ultimately be reversed.

DeVine Law

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