In a short ruling, the Supreme Court of the United States granted a stay of the ruling of Judge Richard Shelby declaring Utah’s law against same-sex marriage unconstitutional, thus bringing to an end for now same-sex marriage in one of the nation’s most conservative states:
WASHINGTON — The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.
The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.
The Supreme Court acted more than two weeks after a federal judge in Salt Lake City on Dec. 20 struck down Utah’s ban on same-sex marriage, saying it violated principles of equal protection and due process. Judge Robert J. Shelby of Federal District Court refused to stay his decision while it was appealed, as did the United States Court of Appeals for the 10th Circuit, in Denver.
Judge Shelby’s decision made Utah the 18th state, along with the District of Columbia, to allow same-sex marriages, and many hundreds of gay and lesbian couples have married there in the intervening weeks. Should a higher court ultimately reverse Judge Shelby’s ruling, it is not clear what would happen to those marriages.
In their Supreme Court brief, Utah officials said Judge Shelby’s decision should be stayed “to minimize the enormous disruption to the state and its citizens of potentially having to ‘unwind’ thousands of same-sex marriages.” The brief did not explain why it took officials so long to ask the Supreme Court for a stay; they filed on Dec. 31, a week after the appeals court declined to issue one.
Judge Shelby was only the second federal judge to strike down a state ban on same-sex marriages, along with Judge Vaughn R. Walker in San Francisco, who in 2010 struck down Proposition 8, California’s ban. That ruling was stayed while it was considered by an appeals court, which affirmed it, and by the Supreme Court.
In June, the Supreme Court effectively sustained Judge Walker’s decision on technical grounds and without reaching the question of whether there is a constitutional right to same-sex marriage.
Other states have allowed same-sex marriages as a result of ballot measures, legislative action or decisions from state courts. Utah’s ban, an amendment to the state Constitution, was passed in 2004 with the support of 66 percent of the voters.
In urging the Supreme Court to stay Judge Shelby’s decision, state officials relied on the second same-sex marriage decision issued by the Supreme Court in June, United States v. Windsor, though the officials conceded that the ruling offered support to both sides in their case.
The Windsor decision struck down the part of the Defense of Marriage Act that denied federal benefits to married same-sex couples in states that allowed such unions. Justice Anthony M. Kennedy, writing for a five-justice majority, grounded his decision partly in federalism principles, saying the regulation of marriage was primarily a matter for the states.
The Supreme Court’s order, which can be seen at this link, is short and merely states that the District Court Order is stayed pending the appeal to the 10th Circuit Court of Appeal without providing any substantive basis for the Court’s decision. This is typical of how the Justices handle matters such as this in no small part due to the fact that they are well aware that a case like this may eventually find its way to them for a decision on the merits and none of the Justices wishes to lock themselves in to a particular legal position when it comes before them at that point. Additionally, as I noted before, the matter was originally referred to Justice Sotomayor due to her position as Circuit Justice for the 10th Circuit, but it seems apparent from the manner in which the decision was announced that she ultimately ended up referring the matter to the full Court, most likely over the weekend. There’s no way to know for sure, but it does appear that the decision to grant the stay was unanimous since their is, as Lyle Denniston notes, no indication that any of the Justices disagreed with the disposition of the application for a stay.
Denniston makes these further observations about the possible reasons behind the decision:
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.
Since the Monday order provided no explanation, it was not clear which of the arguments made by state officials had been convincing to the Justices. The state had argued, among other things, that U.S. District Judge Robert J. Shelby’s decision nullifying Utah’s ban had preempted the power of the Supreme Court to be the final arbiter on that question. The state also had contended that its interest in enforcing its ban would have been undercut by a refusal of a stay. And it had said that it would be difficult to untangle marriages that had occurred in the meantime, if the ban were ultimately upheld in the courts.
From here, the path of the case is relatively straightforward. The State of Utah will quite obviously take the steps necessary at this point to formally appeal the case to the 10th Circuit, where it apparently will be briefed and argued on something of an expedited basis. From there, it will, eventually, be at a point where it will be ripe for consideration by the Supreme Court, although that is most likely not going to happen during this term since, as Denniston notes, the time frame during which cases can reasonably be scheduled or a hearing is nearly ended. Instead, this case, perhaps along with the one or more of its companion cases pending around the country, would most likely end up being argued during the term that starts in October 2014. In any case, until that point, no further same-sex marriages will be taking place in Utah.
Although I had speculated last week that the Supreme Court might end up denying the request for a stay given that two lower courts had also done so, the outcome here isn’t entirely surprising. In general, the purpose of stays at the appellate level is to preserve the position of the parties until the matter can be fully litigated via the appeals process. Also, as Denniston notes, it also likely indicates that the Court wishes to allow the entire issue of same-sex marriage to be more fully litigated in the lower courts before it is presented with the ultimate obligation of ruling on whether or not the Constitution grants a right to marriage to gays and lesbians regardless of the provisions of state law. After all, if the Supreme Court were to ultimately uphold it would not be like the Court’s decision in United States v. Windsor, which only applied to Federal Law, or Hollingsworth v. Perry, which likely would have only applied to California even if they hadn’t dodged the ultimate issue of Proposition 8’s validity. Here, a decision striking down the Utah’s law would mean, ultimately, that the law in all 33 states that currently ban same-sex marriage is unconstitutional. While I personally happen to believe that this would be a correct decision, I can understand the reasons why the Court would want to proceed cautiously on the matter until it is indeed require to render a final decision.
To answer a question that I’m already seeing pop up in the media, I would not read anything significant into how this or any other case might be decided on the merits into how the Court handled this application for a stay. For one thing, the standards in evaluating such an application are far different from the legal standards that the Court will have to use in evaluating the case on its merits if and when that time comes. For another, as I noted above the Justices motivations in handling the stay application are rather different from those in play when handling a case on its merits. So, the fact that the stay request was apparently agreed to without dissent doesn’t really tell us anything about how it might turn out when it is heard on the merits, whether that occurs later this year, in 2015, or some time later.
One open question this does leave, of course, is the status of the 900 or so same-sex couples who took advantage of the nearly two week period during which same-sex marriage was legal in Utah. The answer to that question is that we don’t know yet. I would think that, for the moment at least, those marriages will be seen as being legal and valid given Judge Shelby’s Order, but there will be an obvious conflict if the 10th Circuit, or the Supreme Court, ultimately ends up holding that Utah’s ban is in fact permissible under the Constitution. At that point, it would presumably be up to either Judge Shelby and the 10th Circuit or, more likely, the state courts in Utah, to determine what the status of these marriages might be. Looking at this as an abstract issue, it strikes me that the marriages ought to be seen as valid regardless of what ultimately happens to Utah’s law in the Courts since they got married during a period when a Court of competent jurisdiction had ruled that they had a right to do so. Of course, hopefully that won’t be an issue and Utah’s law will be struck down. In that case, the marriages that took place during the past two weeks will be as valid as those that occur after a final decision in this matter.
In any event, the Supreme Court has spoken and, for the time being at least, Utah’s law banning same-sex marriages is back in effect. Whether that remains the case going forward will be up to the Courts.
