UPDATE 1:16 p.m. State officials said on Monday that they are evaluating the legal fate of Utah same-sex couples who already have been married. A total of 950 marriage licenses have been issued in the state to gay and lesbian couples, but it is unknown how many of them actually got married before the Supreme Court acted on Monday morning.
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.
Since the Monday order provided no explanation, it was not clear which of the arguments made by state officials had been convincing to the Justices. The state had argued, among other things, that U.S. District Judge Robert J. Shelby’s decision nullifying Utah’s ban had preempted the power of the Supreme Court to be the final arbiter on that question. The state also had contended that its interest in enforcing its ban would have been undercut by a refusal of a stay. And it had said that it would be difficult to untangle marriages that had occurred in the meantime, if the ban were ultimately upheld in the courts.
The state had asked for a delay from Justice Sonia Sotomayor, who handles such emergency requests from the geographic region that includes Utah — that is, the Tenth Circuit. She referred it to the full Court rather than acting alone.
The Court appeared not to have labored over what to do with the request: it acted within a short time after the final written filing had been submitted by state officials, earlier in the day.
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.