The deal is that in the Western circuit courts, the last ruling on the subject was in the case of California’s Proposition 8, which overturned the law based on “equal protection” arguments. And in the Supreme Court case on DOMA decided in June, the Supreme Court decided that refusing to allow marriage benefits to gay couples married in states that recognized gay marriage violated the Equal Protection clause of the 14th Amendment. So the precedent at this point is that gay marriage is an Equal Protection issue, until the Supreme Court says otherwise. Any circuit court judge that claims he is going to rule based on precedent is thus going to rule that barring gay marriage is an Equal Protection issue, and kick it up the chain for the appeals courts and Supreme Court to hash out the fine print and produce precedent either upholding or overturning his ruling. Which is exactly what Judge Robert J. Shelby did when he ruled that Utah’s ban on gay marriage violated the 14th Amendment.
In other words, people shocked, shocked I say, that this staunchly Republican jurist ruled the way he did, and who insist on believing he is part of some conspiratorial “gay agenda” to shoot their children with the gay ray of gayness and make them gay (or something like that), are barking up the wrong tree. He made the ruling he had to make based on the precedent that actually exists. The state of Utah claims of “judicial activism” are thus nonsense. They should appeal his ruling, and are doing so apparently. The appeals court and, perhaps, the Supreme Court, will produce further precedent for circuit court judges to apply to the cases that appear before them. But until that happens, the precedent is the precedent and any judge who deserves to be on the bench will apply the precedent regardless of his personal opinions on the matter.
– Badtux the Legal Penguin