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New test on same-sex marriage due at Court soon (UPDATED)

UPDATED 9:05 p.m.  The state attorney general’s office promptly announced that it will be seeking a postponement from the Supreme Court “in the coming days, to avoid uncertainty.” A statement from the office’s communications chief can be read here.


The U.S. Court of Appeals for the Tenth Circuit set the stage on Friday for a quick return by Utah state officials to the Supreme Court, seeking to delay another federal judge’s ruling in favor of same-sex marriage.  This time, the state’s plea will focus on same-sex couples who were married during a brief window of opportunity last winter, before the Supreme Court stepped into the Utah controversy.  State officials have until July 21 to file such a request with the Justices.

The state’s filing would not at this stage draw the Court into the basic constitutional controversy over whether marriage must be open equally to same-sex couples.  Utah officials plan to take that core question to the Court this summer or early fall.  The immediate issue this time will be whether the Justices will put on hold a judge’s ruling in May requiring Utah to recognize some 1,300 same-sex marriages performed between December 23 and January 6.  That ruling has since been put on hold, and will remain suspended at least until the Supreme Court acts.

The same panel of the Tenth Circuit that had made a two-to-one ruling in late June to strike down Utah’s ban on same-sex marriage, for gays and lesbians newly seeking to wed, strongly hinted Friday (again, by a divided vote) that it probably would also require the state to recognize the marriages that were performed in the state last winter.  The panel majority indicated that the state was not likely to win its pending appeal on that question.

Sorting out the sequence, here’s the background on the two tracks of Utah same-sex marriage disputes — one on a right to marry, one on recognition of same-sex couples’ existing marriages.

On December 20, U.S. District Judge Robert J. Shelby of Salt Lake City ruled that Utah’s ban on same-sex couples who wish to wed was unconstitutional.  Three days later, same-sex couples began to receive marriage licenses and hundreds — somewhere around 1,300 — were actually married.

On January 6, after the Tenth Circuit refused to delay Judge Shelby’s ruling, the Supreme Court stepped in at the request of state officials and postponed the decision while the state pursued an appeal to the Tenth Circuit.  That put a stop to new same-sex marriages in the state as of that day — January 6.

On May 19, Senior U.S. District Judge Dale A. Kimball of Salt Lake City ruled that the 1,300 marriages performed prior to that date were valid, and that the state had to recognize them.  (The Justice Department in Washington decided to treat those marriages as valid for purposes of federal marital laws and benefits.)   Judge Kimball, however, put his ruling on hold for twenty-one days.

On June 5, the Tenth Circuit ordered that the postponement of Judge Kimball’s ruling would continue while it studied whether to issue a longer delay at the state’s request.

On June 25, the Tenth Circuit’s divided ruling nullified the ban on same-sex couples who wish to get married.  But it delayed that ruling, too.  That is the one that Utah officials said this week that they will be taking to the Supreme Court in “coming weeks.”  They have until late September to file the formal petition for review.

Then, on Friday afternoon, the Tenth Circuit refused, by a two-to-one vote, the state’s request for a longer postponement of Judge Kimball’s ruling ordering recognition of the 1,300 same-sex marriages.  However, the panel said it would delay this new decision until 10 a.m. (Eastern time) on Monday, July 21, to give the state a chance to go to the Supreme Court for a delay.  That, the panel stressed, is only a temporary stay.

Because Utah officials have moved energetically so far to delay all of the rulings on same-sex marriage, it is a near certainty that they will now go to the Justices with a plea to delay recognition of the winter marriages.  (See the update at the top of this post.)

The two judges who had struck down the new marriages ban — Circuit Judges Jerome A. Holmes and Carlos F. Lucero — made the new decision.  Judge Paul J. Kelly, Jr., dissented, as he had on June 25 in the other case.

The majority said simply that state officials “have not made showings sufficient to warrant a stay pending appeal.”  They noted that one of the showings state officials would have had to make was that they were likely to win their appeal.  Thus, the significance of the new ruling was that the two judges had at least strong doubts that the state could show that Judge Kimball was wrong in ordering recognition of the winter marriages, when the merits of that ruling are decided by the Tenth Circuit.

Judge Kelly in dissent argued that Judge Kimball’s May 19 ruling “should be stayed to allow for an orderly resolution of this controversy and one based upon the rule of law.”  By denyhing a stay pending appeal in this case, he added, the majority added to “the chaos begun” with Judge Shelby’s failure to put his December ruling on hold.

If, as expected, the state now moves for a stay of the Kimball decision, that request would go first to Justice Sonia Sotomayor, who handles emergency requests from the geographic area that is the Tenth Circuit, which includes Utah.  She has the authority to act on her own or share it with her colleagues.

The fact that the Court is now in its summer recess would not prevent it from acting on the matter, in a temporary way.

Although this will be the first time the Justices will have a recognition-of-marriage issue before them that arises from the recent round of lower court rulings involving same-sex couples, the Court actually has dealt with a recognition issue before.

Last June, in the decision in United States v. Windsor, the Court struck down a key part of the federal Defense of Marriage Act because it denied federal marital benefits to same-sex couples who were already legally married under their state’s laws.  The refusal to treat those existing marriages as valid violated the rights of those couples and their children, the Court decided.

The Court stressed, though, that it was not then ruling on the constitutionality of state bans on same-sex marriage.



Recommended Citation: Lyle Denniston, New test on same-sex marriage due at Court soon (UPDATED), SCOTUSblog (Jul. 11, 2014, 10:07 PM),