Supreme Court halts same-sex marriages in Utah pending appeal

By Robert Barnes, Tuesday, January 7, 2014 - Washington Post

The Supreme Court put same-sex marriages in Utah on hold Monday morning while the state appeals a federal judge’s order that allowed them.

Hundreds of couples have been married since U.S. District Judge Robert J. Shelby ruled Dec. 20 that the state’s ban on such unions violated constitutional guarantees of equal protection and due process. But Utah said each marriage was an “affront” to the state’s ability to define marriage as only between and man and a woman, and asked the high court to intervene.

Both Shelby and the U.S. Court of Appeals for the 10th Circuit in Denver had denied the state’s request for a stay. The appeals court in Denver has put review of Shelby’s decision on a fast track.

But the Supreme Court, in a short order, said Shelby’s ruling should be stayed while the appeals continue. Utah’s request was made to Justice Sonia Sotomayor, who is designated to handle emergency requests that originate in the 10th Circuit. She referred the matter to the entire court, which issued the stay without discussion or recorded dissent.

Shelby’s ruling presents a question — whether state bans on same-sex marriage violate an individual’s constitutional rights — that the Supreme Court sidestepped when it delivered landmark decisions on gay marriage in June.

Utah did not ask the court to tackle that issue now but wanted to stop the marriages while the appeals continue.

Utah Attorney General Sean Reyes (R) said the state has not made a decision about whether to take legal action against the marriages that have taken place.

“There is not clear legal precedence for this particular situation,” Reyes, who took office only last week, said in a statement. “This is the uncertainty that we were trying to avoid by asking the district court for a stay immediately after its decision. It is very unfortunate that so many Utah citizens have been put into this legal limbo.”

James E. Magleby, who represented three couples challenging the ban, said the Supreme Court’s stay “is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over.” He added, “Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

The Supreme Court delivered carefully weighted decisions on same-sex marriages at the close of its term in June.

In one, U.S. v. Windsor, it voted 5 to 4 to find unconstitutional the Defense of Marriage Act (DOMA), which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such marriages.

In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, banning same-sex marriage, was unconstitutional. The court ruled that the case was not properly presented to it, and avoided a decision on whether state bans offend the U.S. Constitution.

All agreed that question would probably come back to the Supreme Court eventually, but the swiftness of change — and the venue of conservative Utah — has been a surprise. When the court heard arguments in the two cases in the spring, nine states plus the District of Columbia allowed same-sex marriage.

Not including Utah, the number now stands at 17. The highest state courts in New Jersey and New Mexico have since ruled the marriages must be allowed.

Shelby, appointed by President Obama but endorsed by Utah’s two conservative Republican senators, became the first federal judge to rule that the court’s reasoning in Windsor meant that a state constitutional amendment banning same-sex marriage could not stand.

“The Supreme Court’s decision in Windsor to strike down DOMA was based on the liberty of individuals to form intimate relationships without being demeaned or degraded by the government,” Shelby wrote.

He said that all of the justifications offered by Utah for passing a law that restricts same-sex couples from the fundamental right to marry were offered by the federal government in defense of DOMA, and rejected by the court’s majority.

In asking the Supreme Court to halt the marriages before any more could be performed, it said that if it is successful in overturning Shelby’s decision, it “inevitably will confront the thorny problem of whether and how to unwind the marital status of same-sex unions performed before reversal.”