Supreme Court halts Utah gay marriages, signaling cautious approach

By David G. Savage

Jan. 6, 2014 9:27 PM PT

WASHINGTON — The Supreme Court ordered a halt to same-sex marriages in Utah on Monday, sending a go-slow signal as it suspended a federal district judge’s decision that gays and lesbians have a constitutional right to marry.

The terse order came with no dissents, suggesting justices are not ready to recognize a right to gay marriage nationwide and are reluctant to allow a lower court to nudge them into answering a legal question they carefully avoided in two landmark gay rights rulings last year.

“If this means anything, it means they want a little more time to decide this,” said Cornell University law professor Michael Dorf, a former court clerk. “And this order guarantees that.”

The order puts a stop to the issuance of new marriage licenses for gay and lesbian couples in Utah while the state appeals to the U.S. 10th Circuit Court of Appeals in Denver. About 1,000 marriage licenses were issued over the last two weeks after a federal district judge’s Dec. 20 ruling.

The appeals court is expected to rule this year, which probably means the losing side won’t get a final decision from the Supreme Court before 2015.

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Monday’s order, which one gay rights advocate likened to hitting the “pause button,” came as a surprise and disappointment to some. It also left in doubt the legal unions of gay and lesbian couples in Utah while the state debates whether to uphold or invalidate marriages conducted before the Supreme Court stay.

“It is very unfortunate that so many Utah citizens have been put into this legal limbo,” said Utah Atty. Gen. Sean Reyes. He said his office was “carefully evaluating the legal status of the marriages that were performed since the district court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

Gay marriage has been steadily gaining acceptance in opinion polls, state legislatures and state courts. Seventeen states and the District of Columbia allow same-sex couples to marry, but at least 28 states — including Utah — have constitutional provisions that limit marriage to a man and a woman.

Gay rights advocates want the Supreme Court to override state bans and recognize same-sex marriage as a constitutional right. But the justices have made clear they want to move cautiously, preferring to affirm a constitutional right after gay marriage has gained broad acceptance, rather than impose a new mandate that is controversial and disputed in much of the nation.

Last year, advocates of same-sex marriage won two significant victories in the Supreme Court, but not an unqualified right to marry. The justices, on a 5-4 vote, struck down a federal law that denied equal federal benefits to legally married same-sex couples.

They also handed down a procedural ruling that cleared the way for gay marriages in California, but they stopped short of creating a constitutional right nationwide or tackling the question of whether states may enforce a more traditional definition of marriage.

On Dec. 20, U.S. District Judge Robert Shelby in Salt Lake City said the high court’s June opinion led to the inevitable conclusion that gays and lesbians had an equal right to marry. He struck down Utah’s constitutional ban on same-sex marriages and refused to put his decision on hold while the state appealed.

The 10th Circuit Court also refused to stay the ruling.

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Last week, Utah’s attorney general sought a temporary stay from Supreme Court Justice Sonia Sotomayor, who has jurisdiction over such requests from the state. She referred it to the entire Supreme Court, which granted the stay.

The one-paragraph order offered no clues about how justices might ultimately rule. Some legal experts said that if the court had refused to issue the stay, it might have been seen as a strong indication that justices were ready to go further than they had in June.

Michael J. Klarman, a legal historian at Harvard Law School, said he was surprised by the stay because he believed the same five-justice majority that struck down the federal benefits ban in the Defense of Marriage Act would eventually vote in favor of a constitutional right to gay marriage.

“They might prefer to duck the issue for a couple more years,” said Klarman, who published a book last year on the struggle for same-sex marriage. “But the historical handwriting on the wall is simply too clear for any of them to want to associate themselves with what will increasingly appear to be a bigoted position.”

Others viewed the court’s decision to grant the stay as a warning to lower courts that they should avoid moving too quickly on the issue.

“The trial court’s ruling in Utah goes further than the court has gone so far, and so it is not surprising that the justices — without comment or dissent — put that ruling on hold, pending further review,” said Notre Dame law professor Richard Garnett. He noted that the court often gave states the benefit of the doubt when they appealed.

Lawyers for the American Civil Liberties Union were disappointed but said the court’s action should not affect gay couples who lawfully married in Utah.

“Though future marriages are on hold for now, the state should recognize as valid those marriages that have already been issued,” said John Mejia, legal director for the ACLU of Utah.

A similar issue arose in California in 2008 after the state Supreme Court ruled that gays and lesbians could marry. The same-sex marriages that ensued were upheld as valid, even though voters passed Proposition 8 within months, restoring a state ban on gay marriages.

But in Utah, the federal judge’s ruling is not a final decision because it is still under appeal, so the question of validity is less clear.

Opponents of gay marriage welcomed the high court’s intervention.

“It was outrageous that this brazen judge appointed by President Obama would substitute this view for the sovereign decision by both the Utah Legislature and the people of the state, who voted overwhelmingly in favor of defining marriage as the union of one man and one woman,” said Brian Brown, president of the National Organization for Marriage.

Shelby was recommended for the bench by Utah’s two Republican senators, Orrin G. Hatch and Mike Lee.

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