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Utah gets delay on same-sex marriages’ legality

The Supreme Court on Friday afternoon spared the state of Utah, temporarily, from having to officially recognize some 1,300 same-sex marriages that were performed last winter.  In a two-sentence order, without noted dissent, the Justices put on hold a federal judge’s ruling in May requiring the state to validate those marriages.

This marked the second time the Justices have stepped in to put on hold a federal court ruling in favor of same-sex marriages in Utah.  The delay ordered Friday will be in effect until the U.S. Court of Appeals for the Tenth Circuit rules on the state’s claim that those marriages did not have full legal status when performed.  The state’s lawyers have called them “interim marriages.”  The Tenth Circuit, however, has already given a strong hint that the state’s appeal is likely to fail.

The dispute over these marriages is separate from, but is related to, the controversy over the constitutionality of Utah’s ban on all such marriages.  The ban has been struck down by a different federal judge, and Utah is planning to take that case to the Supreme Court in coming weeks.

The marriages at issue in the Court’s Friday order were performed between December 20, when the state ban was nullified, and January 6, when the Supreme Court — in an earlier order — put that decision on hold while the Tenth Circuit reviewed it.  In June, the Tenth Circuit struck down the ban, but that order is on hold so that Utah can take that core issue to the Supreme Court.

After the Justices’ January 6 order, same-sex marriages stopped in Utah.  But, in the meantime, some 1,300 marriage licenses were issued in the state, and apparently most of those couples then got married.  Some of those couples then filed a separate federal court case, seeking to have their marriages officially recognized.

On May 19, a judge in Salt Lake City ruled that the state had to accept those marriages as valid.  The state then appealed that new decision to the Tenth Circuit, and asked it to delay the decision while the appeal proceeded.

On July 11, the Tenth Circuit said it would not grant a formal postponement, but gave the state time to ask the Supreme Court to do so.  The state then asked the Justices for a delay, and that was granted in the Friday order.

When the Tenth Circuit took its latest action on July 11, it noted that — to get a stay of the recognition order — the state had to show that it was likely to win the case ultimately.  In an opinion issued on a two-to-one vote, the panel majority said that the state had “not made showings sufficient to warrant a stay pending appeal.”  That was at least a strong indication that, when the Tenth Circuit actually rules, it may well reject on the merits the state’s protest over recognition of the winter marriages.

With the Supreme Court’s delay order on Friday, the state’s appeal on the marriage recognition issue will now go forward in the Tenth Circuit and the legal status of the performed marriages will remain in legal doubt.  A final ruling by the court of appeals may take some weeks or months, but that issue, too, probably will end up in the Supreme Court in the coming Term.

The Tenth Circuit’s two-judge majority in the Utah cases has taken strong stands in favor of same-sex marriage — not only in Utah, but also, in a ruling issued earlier Friday and discussed in a post below, the same majority did so in Oklahoma.

Utah is the only state in which the currently unfolding court battles over same-sex marriage have resulted in a delay order by the Supreme Court.  However, other federal courts, after striking down such bans, have put those rulings on hold.

The Supreme Court has twice turned down other efforts to delay same-sex marriage — in Oregon and Pennsylvania — but in both of those situations, the plea for postponement was made by someone other than state officials.  In both of the orders issued regarding Utah, the pleas were made by state officials.  The Court obviously regards those as having more merit.

The fact that the Justices have issued delay orders, however, does not necessarily forecast how they will vote when the same-sex marriage issue is actually before them in a formal appeal — either on the right to marry or on the right to have existing marriages officially recognized.

The Friday order was issued after the Court had received a reply brief from state officials.  That filing can be read here.

Utah’s request was filed with Justice Sonia Sotomayor, who handles temporary legal matters from the Tenth Circuit’s geographic area, which includes Utah.  She then shared the question with her colleagues.  The final order appeared to have unanimous support, but sometimes, dissents are not noted in such orders, so there is no way to know whether it was, indeed, unanimous.

The Utah cases are the furthest along in going through the lower federal courts and, as of now, appear likely to be the first to reach the Supreme Court in formal appeals sometime later this year.


Recommended Citation: Lyle Denniston, Utah gets delay on same-sex marriages’ legality, SCOTUSblog (Jul. 18, 2014, 5:11 PM),