UPDATE 5:14 p.m.  Justice Sonia Sotomayor has asked for a response to the Utah application; it is due by noon on Friday.  There thus will be no action on this application pending that filing.

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Arguing that the Supreme Court’s role as the ultimate arbiter of what the Constitution means is at stake, state officials in Utah on Tuesday afternoon asked the Court to put on hold a federal judge’s ruling striking down that state’s flat ban on same-sex marriages.  The application (Herbert v. Kitchen, docket 13A687) took the narrowest legal option available to the state to gain time to defend its ban in the courts — a simple request for a delay.

The officials argued that U.S. District Judge Robert J. Shelby of Salt Lake City  assumed for himself in a ruling earlier this month the authority to decide a fundamental constitutional question that the Supreme Court itself has left open: whether states can decide to define marriage in their own way, such as excluding gay and lesbian marriages.  The judge’s action must be postponed so that no more of those marriages occur until the issue is finally settled, by the Supreme Court, the state said.

The state’s argument is based upon the premise that gay and lesbian couples are not seeking to share in a constitutional right that already exists and is open to other couples — the right to marry — but rather are attempting to create an entirely new right without a constitutional amendment or a definitive, final ruling in the courts.

Judge Shelby has not conceded that premise, actually concluding that the right to marry is and long has been a fundamental right, and that excluding same-sex couples violates their right to legal equality and to make their own choices about their personal lives.

Utah’s voters approved a constitutional amendment to outlaw same-sex marriages, and that choice, the state’s application argued, must be honored unless and until the federal Constitution is found to overrule it.  While the state has an appeal from Judge Shelby’s ruling pending in the U.S. Court of Appeals for the Tenth Circuit, based in Denver, that court has refused to delay the Shelby decision, so state officials turned to the Supreme Court.

Initially, they asked Justice Sonia Sotomayor — who handles emergency legal matters from the geographic area that includes Utah — to issue a stay pending the outcome of the state’s appeal.  But, if Sotomayor is not willing to issue such an order, then the full Court should consider the plea, the application said.

The state did have the option of asking the Court to move immediately, itself, to decide the ultimate question of state power to ban same-sex marriages.  But, after consulting with lawyers outside the state government’s own legal team, the officials appeared to be operating on the premise that their best chance of delaying such marriages was to ask for the least sweeping order from the Court.

If the Justices are hesitant to get involved in the basic constitutional issue at this point, and they showed some reluctance to do that when they had s chance last Term, they might be more agreeable to a simple request to block Judge Shelby’s ruling until it is further tested in the Tenth Circuit.

The Tenth Circuit has said that it would put the state’s appeal on an expedited schedule.  Even so, such a schedule almost certainly would mean that there would be no final ruling at the court of appeals level until it was too late to get the case before the Supreme Court during the current Term, likely to end in late June.

The opening arguments in the state’s brief are built on the foundation that the Court declined, in two same-sex marriages decided last June, to rule on states’ bans on such unions.  Judge Shelby, the application argued, has now stepped in to fill that void.

In one of the June decisions, the Supreme Court struck down a part of the federal Defense of Marriage Act that barred federal marital benefits to same-sex couples who already had been legally married in states that allowed it.  The Court said explicitly in that ruling that it did not have before it the authority of states to define who can and cannot enter civil marriage.

In the other decision, the Court for procedural reasons did not rule on the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriages in the nation’s largest state.  That ruling, however, had the practical effect of clearing the way for such marriages to resume in California under an earlier decision by a federal judge in San Francisco.

Noting those two rulings, Utah state officials suggested that a single district judge — Judge Shelby — had applied one of a court’s strongest legal orders to resolve that open issue and to lead to scores of marriages now being performed daily in Utah under that order — left intact both by Judge Shelby and by a Tenth Circuit motions panel last week.

Although the application is initially a plea for a stay of the Shelby ruling, to put a stop to the continuing issuance of same-sex marriage licenses in Utah, the substance of the state’s filing is that it actually anticipates that the ultimate issue is headed for the Supreme Court, and thus there should be a postponement of any same-sex marriages in Utah until there is a final ruling by the Supreme Court.

Posted in Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Utah seeks delay of same-sex marriages, SCOTUSblog (Dec. 31, 2013, 4:41 PM), http://www.scotusblog.com/2013/12/utah-seeks-delay-of-same-sex-marriages/