Justices block gay marriage in Utah during appeal of case

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Supreme Court Justice Sonia Sotomayor speaks with KPCC's Patt Morrison at the Crawford Family Forum on January 25, 2013.

Supreme Court Justice Sonia Sotomayor speaks with KPCC’s Patt Morrison at the Crawford Family Forum on January 25, 2013.

In a move that cast doubt over the marriages of roughly 1,000 same-sex couples in Utah, the Supreme Court on Monday blocked further same-sex marriages there 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 or hints about where the Supreme Court now stands on the momentous question of whether there is a constitutional right to same-sex marriage.

At most, legal experts said, the order may indicate a preference for orderly litigation that preserves the status quo while appeals proceed.

“Is it a harbinger of what the Supreme Court will do?” asked William N. Eskridge Jr., a law professor at Yale. “No, I don’t think so. We know nothing more than we did the day after” the court issued a pair of same-sex marriage decisions in June.

Perhaps a thousand same-sex couples in Utah had married after Dec. 20, when a federal judge in Salt Lake City struck down the state’s ban on such unions, saying it violated principles of equal protection and due process. The fate of those marriages is now unclear.

“It’s very disappointing,” said Brandon Mark, who was among the same-sex couples who took part in a jubilant race to marry after the December ruling. “I’m assuming we’re going to get no resolution on the question of whether our marriage is valid until the Supreme Court rules on this issue. We’ll just be in limbo.”

But a final ruling may take some time. The appeals court, the United States Court of Appeals for the 10th Circuit, has set a briefing schedule that concludes in late February, presumably to be followed by arguments before a three-judge panel of the court. Further appeals, to the full court and the Supreme Court, are likely.

Arthur S. Leonard, a professor at New York Law School, said the federal government and Gov. Gary R. Herbert of Utah, a Republican, should offer prompt guidance to same-sex couples recently married in the state.

“The court’s action leaves unanswered questions about the status of the 1,000-plus same-sex marriages contracted in Utah over the past several weeks,” Professor Leonard said. “The Obama and Herbert administrations need to advise those couples, especially as income tax filing season is imminent.”

Precedents from California point both ways on the question of what is to be done when later developments cast a shadow on same-sex marriages. In 2004, the California Supreme Court declared void thousands of licenses for same-sex marriages issued in San Francisco. In 2009, that same court upheld Proposition 8, the state’s ban on same-sex marriage, but affirmed the validity of 18,000 same-sex marriages entered into in previous months.

Federal courts in California later struck down Proposition 8, and the Supreme Court in June effectively sustained the trial court’s ruling in the case on technical grounds, without offering a view about whether there was a constitutional right to same-sex marriage.

In the Proposition 8 case, the federal appeals court had stayed decisions in the case while they were appealed. In Utah, by contrast, Judge Robert J. Shelby of Federal District Court in Salt Lake City refused to stay his decision, as did the appeals court in Denver.

Judge Shelby’s decision had made Utah the 18th state, along with the District of Columbia, to allow same-sex marriages.

Gay rights advocates said they hoped the Supreme Court’s order was just a passing setback.

“While every day’s denial of the freedom to marry hurts, today’s decision by the Supreme Court to grant a stay in Utah is just a temporary pause in the work to win marriage for all loving and committed same-sex couples in the state,” said Evan Wolfson, the president ofFreedom to Marry.

Brian S. Brown, president of National Organization for Marriage, which opposes same-sex marriage, said he supported Monday’s Supreme Court order.

“The decision by a single federal judge to redefine marriage in Utah is lawless,” he said, “and we are pleased that the Supreme Court has put this decision on hold to allow the state to appeal it in an orderly fashion.”

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, after Judge Vaughn R. Walker in San Francisco, who in 2010 struck down Proposition 8. 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 by 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.

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.

Courtesy of New York Times

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