SBM Blog's unofficial hiatus coincided almost exactly with the rise and fall -- well not "fall" exactly, but a a kind of indefinite coming back to earth -- of gay marriage in Utah. On Dec. 20, U.S. District Judge Robert J. Shelby ruled that Utah's ban on same-sex unions violated equal protection and due process. As dominoes go, that decision, coming as it did from Utah, was a very big symbolic domino in the same-sex marriage game, said Jeffrey Toobin in the New Yorker. Predictably, reviews of the opinion were all across the board. There was much made of Shelby's use of Justice Scalia's prophesying in his dissent in United States v. Windsor.
The state moved for a stay of the ruling, which Shelby denied. So did the 10th circuit, but it put the state's appeal on a fast track. In a terse order today, the U.S. Supreme Court granted the stay. SCOTUSblog's Lyle Denniston speculates:
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.
How soon will we know what the Court is thinking? The 10th circuit's briefing schedule directs appellants’ to file their opening brief and appendix no later than Jan. 27 and appellees to respond by Feb. 18. After that, it's anybody's guess. Election Law's Rick Hasen, who wrote on Dec. 25th that it was "fairly likely" that the Court would grant a stay, speculated:
That will buy the Court some time. But not that much. I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits. There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.
According to SCOTUSblog, 950 marriage licenses have been issued to gay and lesbian couples in Utah, but it is not known how many couples got married before the Supreme Court granted the stay. What is the status of the couples who got in under the wire? That, too, is anybody's guess. We'll bring the more interesting guesses to you as we find them.
