Should We Stay Or Should We Go

SCOTUSBlog's Lyle Denniston explains yesterday's Supreme Court decision to stop same-sex marriages in Utah pending the state's appeal in federal court.

The Supreme Court on Monday morning put on hold a federal judge’s decision striking down Utah’s ban on same-sex marriage, thus stopping a wave of such marriages across the state. The Court’s order reinstates the state ban and will keep it intact until after a federal appeals court has ruled on it.

The order appeared to have the support of the full Court, since there were no noted dissents. The ruling can be interpreted as an indication that the Court wants to have further exploration in lower courts of the basic constitutional question of state power to limit marriage to a man and a woman. 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.

The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.

Several stays and holds were present in California, all the way up until the SCOTUS decision clearing the way for same-sex marriages in the state.  In other words, given the decision last June only pertaining to California, and then the DOMA decision,  the question of a right to same-sex marriage at the federal level covering all states still has to be answered.

As a result of the new order, the U.S. Court of Appeals for the Tenth Circuit, based in Denver, will go forward with an expedited review of Judge Shelby’s decision. The appeals court has ordered briefing to begin on January 27 and to be completed by February 25. It has indicated it is not likely to grant any extensions of time to file those documents. It has not yet set a hearing date. 

With the Justices’ order in the case, it now appears almost certain that the question of state power to bar same-sex marriages will not be before the Justices during the current Term. A case on that issue would have to be granted this month to be reviewed before the Court is expected to finish this Term in late June. 

With the postponement in Utah, the total of states where gays and lesbians are now allowed to marry stands at seventeen. A variety of lawsuits are proceeding across the country, attempting to advance that cause in other states. There will also be efforts in some state legislatures to clear the way for such marriages.

In other words, it will be at least 2015 before we get an answer from SCOTUS.