The full U.S. Supreme Court has granted Utah a stay on a district court decision that has allowed same-sex couples to marry there since Dec. 20.
The court issued its stay Monday, apparently after Justice Sonia Sotomayor referred the matter to the full court. Sotomayor is the justice designated to administer requests for emergency stays for the 10th Circuit U.S. Court of Appeals but had the option to ask the full court to weigh in on the request.
It takes at least five justices to grant such a stay. The order issued today does not indicate that any justice was in dissent. It states simply that the stay is granted and that the Dec. 20 order by U.S. District Court that prohibited Utah from enforcing its ban is “stayed pending final disposition” of the appeal of that decision to the 10th Circuit. Given the 10th Circuit’s briefing schedule for the appeal, that means the ban will be in force for at least three months and likely longer, given anticipated appeals of whatever the 10th Circuit decides.
Peggy Tomsic and James Magleby, with the private law firm of Magleby & Greenwood which is representing same-sex couples in the case, issued a statement following the Supreme Court’s announcement, noting that it is “not unusual” for the court to stay a decision declaring a state law unconstitutional pending appeal and has “no bearing on who will win on appeal.”
LGBT legal activists agreed.
“No one should draw any negative inferences about where the Court is leaning. This is an unprecedented situation,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which has several marriage equality lawsuits pending now, too. “Never before has a federal court struck down a state marriage law and then declined to stay it, and never before has a Court of Appeals also declined to issue a stay. For those reasons, the chances that the Supreme Court would issue a stay until the appeal is resolved were always quite high, so the real news here is that so many marriages were able to take place. And it is significant that the Court did not rush to act. There is nothing unusual about the issuance of a stay when a federal court strikes down a state law on federal grounds. Bottom line [is] the prospects for this case still look very bright. And there will never be any going back in Utah.”
The challenge to Utah’s ban (the state constitutional Amendment 3 and related statutes), Kitchen v. Herbert, now proceeds as Herbert v. Kitchen on an expedited schedule before the 10th Circuit U.S. Court of Appeals. The next briefing date, according to Tomsic is Jan. 27. The last brief due before oral argument is Feb. 25. The court date has not yet been announced but the next argument session after that deadline is March 17-21.
The Deseret News reports that more than 900 same-sex couples have married since Dec. 20, when District Judge Robert Shelby, an Obama appointee, issued a 53-page opinion, striking down Utah’s ban, ruling it violates the U.S. Constitutional guarantees of equal protection and due process. Shelby immediately enjoined the state from enforcing its ban, then denied the state’s request for a stay of his decision pending appeal. The state took its request for an emergency stay to the 10 Circuit, where it also filed an appeal of Shelby’s decision. Two judges of the 10th Circuit — one an appointee of President George W. Bush, the other an appointee of President Obama — denied the request for a stay on Dec. 24 but put the appeal on an expedited schedule.
“This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over,” Magleby said. “Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”
The U.S. Supreme Court put same-sex marriages on hold in Utah Monday morning, bringing the marriage equality state count down to 17.
Since Judge Robert Shelby ordered Utah to begin issuing marriage licenses, more than 900 couples have married in the state.
The appeals court in Denver will hear the emergency appeal. That court has already refused to stop marriage equality in Utah twice since Shelby’s order. The appeal was filed with Justice Sonia Sotomayor because she is in charge of the 10th Circuit, which includes Utah.
Sotomayor could either issue the stay herself or turn it over to the entire court to decide. She turned it over to the court and a majority voted to issue the stay.