A few weeks ago a federal judge ruled that Utah’s ban on same-sex marriage is unconstitutional and because that judge refused to issue a stay on same-sex marriage pending appeal, same-sex couples in Utah were allowed to apply for marriage licenses and get married. Just moments ago, the US Supreme Court issued a stay blocking any further same-sex marriages to take place within the state of Utah until the matter can be decided on appeal. That means, just like that, marriage equality has been halted in Utah for at least a few weeks until the ruling on the state’s ban on same-sex marriage can be decided on appeal. Ugh.
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 … 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. Utah’s brief relied on that part of the Windsor ruling, saying it supported the right of voters in Utah to define who was entitled to marry in the state. But the brief also acknowledged that Justice Kennedy had expressed concern about the harm caused to the children of gay and lesbian couples by laws that demean them.
While this setback is upsetting there isn’t cause to panic just yet. I actually expected the ruling to stay the advancement of same-sex marriage in Utah until the case could be decided on appeal but when the ruling federal judge decided not to issue a stay and the Supreme Court did not immediately chime in, I just figured that there would be no stay and same-sex marriages could continue to take place in Utah. The couples that have already gotten married should be able to remain married no matter what is decided on appeal because, well, legally married couples cannot be “unmarried” in this way (tho, I guess the argument could be made that the couples were not legally married in the first place … which opens a whole other can of worms). I’m not happy with this stay but I’m confident that Utah’s ban on same-sex marriage will continue to be ruled unconstitutional and I have every confidence that marriage equality will return to Utah soon.