When we last left off, a federal judge named Robert Shelby held that Utah’s ban against same-sex marriage (and same-sex partnerships of any kind) was a violation of the Constitution. Immediately following the ruling, same-sex couples rushed to get marriage licenses. That they were able to do this was in part due to the incompetence of the embattled Utah Attorney General’s Office which neglected to properly file for a stay of judgment. When the AG properly filed for a stay, both Judge Shelby and (on appeal) the Tenth Circuit Court of Appeals refused to grant it. Shelby’s refusal was not surprising given his earlier ruling, but the denial of stay from the Tenth Circuit was definitely a shock. First, the Tenth Circuit is one of the more conservative in the country, which is not surprising considering that it has jurisdiction over Utah, Oklahoma, Wyoming, and Kansas. Second, in denying the stay, the Tenth Circuit effectively played its hand, and let it be known how it planned on ruling. In such a weighty case, a denial of stay is rare absent an almost overwhelming certainty that one side will win. (Two comparisons are useful. The much more liberal Ninth Circuit Court of Appeals stayed the decision in the Prop 8 case pending a decision by the Supreme Court. Post-Windsor, the New Jersey Supreme Court rejected a stay from the Christie Administration, which led to the Administration dropping its case.)
Utah appealed the stay denial to Justice Sonia Sotomayor, the Circuit Justice for the Tenth Circuit. She in turn referred the matter to the full Supreme Court which issued a stay. This is not actually surprising. The Supreme Court is a very conservative institution. Not necessarily in the political sense (although it is currently that too), but in that the Justices are terrified of being seen as moving too quickly. Remember, the Utah case (Kitchen v. Herbert) has not actually been litigated; Judge Shelby granted a motion for summary judgment, and no trial was held. Had the Supreme Court also denied a stay, it would have sent a message to every trial and appellate judge in the country that bans on marriage equality were effectively dead without even a consideration of the issue. That is much too fast for the Supreme Court. (So please calm down, Jeffrey Toobin.) The stay is written such that it is effective until the Tenth Circuit makes a determination. The case has already been fast-tracked on that court’s docket. Expect the issuance of another stay if the Tenth Circuit finds for the same-sex couples.
This is all basically cut and dry. Very legal and routine. After this point though, things get a little bit dicey. In response to the Supreme Court’s stay, the Governor of Utah (the Herbert of Kitchen v. Herbert) told the state not to recognize the over 1300 same-sex marriages that had already taken place. Although this action pleased homophobic activists like Brian Brown and Tony Perkins, the Governor is completely in the wrong. The Supreme Court stay stopped the state from issuing any further marriage licenses to same-sex couples, but the Court said nothing about the ones that already took place. Which, I might add, were performed legally under a decision that has not yet been overturned. The legality of those marriage may yet be up for debate, but not at this time. (For a comparison, the same-sex marriages in California that occurred between the In Re Marriage Cases decision and the passage of Prop 8 a few months later were still deemed valid by the California Supreme Court.)
The Tenth Circuit will not look kindly on Utah’s actions–first because the Governor has countermanded a court order, and second, because the Governor has caused an actual harm. Needless to say, the ACLU has already begun the process of challenging Utah’s refusal to recognize the 1300 legally married same-sex couple. Expect litigation to be undertaken immediately, as there is no shortage of plaintiffs. In response to Utah, the Obama Administration announced that it will recognize those 1300 Utahan marriages for all federal purposes (immigration, tax, Social Security, and the like). This a major, if expected, triumph and it largely offsets much of the damage done by Utah’s state government. It also sets up a direct challenge for the Supreme Court that will be hard to ignore. There can be no federalism feint anymore; Kitchen v Herbert is all about the equality of gays and lesbians and the fundamental nature of marriage.