Utah Gay Marriage Halted by Supreme Court Pending Appeal

Elizabeth Cooper in Bloomberg News, January 06, 2014

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The U.S. Supreme Court halted Utah’s same-sex weddings while the state presses an appeal, reducing the number of states with gay marriage to 17 and slowing the drive toward nationwide rights.

The two-sentence order, which came without either explanation or published dissent, puts on hold a federal trial judge’s ruling that the U.S. Constitution guarantees marriage rights to same-sex couples. Hundreds of gay couples have married in Utah since the federal judge ruled Dec. 20 that the state’s ban violated the Constitution.

Today’s order didn’t directly address whether the Constitution confers same-sex marriage rights, underscoring the go-slow approach the justices have adopted on the issue. The trial judge’s first-of-its-kind decision brought the issue of gay marriage back to the Supreme Court less than a year after the justices dodged the question in a pair of cases.

“We’re disappointed because every day’s denial really harms families while helping no one,” said Evan Wolfson, president and founder of Freedom to Marry, a New York-based group leading a campaign to legalize same-sex marriage throughout the country.

Utah officials said in court papers that, if it ultimately won the case, it might try to “unwind” same-sex marriages. The state sought Supreme Court intervention after U.S. District Judge Robert J. Shelby and a federal appeals court in Denver, which is now hearing the case, let the marriages go forward.

‘Legal Limbo’

“It is very unfortunate that so many Utah citizens have been put into this legal limbo,” Utah Attorney General Sean Reyes said in a statement. He said his office is “carefully evaluating the legal status of the marriages that were performed since the district court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

Shelby said the state’s laws “deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.” The ruling temporarily made Utah the 18th state to recognize gay marriage.

Shelby, a 2012 appointee of President Barack Obama, then refused to block his ruling during the appeal, saying the state wasn’t likely to succeed in its effort to reverse his decision.

As part of their request for a Supreme Court stay, Utah officials said “there is a strong likelihood” that Shelby’s ruling would be overturned.

Three Couples

Shelby’s court ruling overturned a state constitutional amendment, approved in 2004 with 66 percent of the vote. The state’s ban is being challenged by three same-sex couples, including one seeking to have Utah recognize a marriage performed in Iowa.

Since Shelby’s ruling, more than 1,000 couples have sought marriage licenses in Salt Lake County alone, said Sherrie Swensen, the county’s clerk. Although the county doesn’t have figures on the gender of the applicants, 356 couples sought licenses on the first business day after Shelby’s decision, and “99 percent” were same-sex couples, she said.

Four couples were turned away today after the Supreme Court issued its order, Swensen said.

Today’s order came after Justice Sonia Sotomayor, who handles emergency matters from that part of the country, referred the matter to the full nine-member court.

Utah officials, led by Governor Gary Herbert, a Republican, told the justices in court papers that male-female marriages create the best environment for children.

‘Preferred Arrangement’

“By holding up and encouraging man-woman unions as the preferred arrangement in which to raise children, the state can increase the likelihood that any given child will in fact be raised in such an arrangement,” Utah told the justices.

A majority of the court suggested disagreement with that argument last year United States v. Windsor, a 5-4 decision that struck down a law denying federal benefits to legally married gay couples.

Writing for the court, Justice Anthony Kennedy said the law “humiliates tens of thousands of children now being raised by same-sex couples.” He also said the measure “places same-sex couples in an unstable position of being in a second-tier marriage.”

The ruling prompted a dissenting justice, Antonin Scalia, to predict that the majority would strike down a same-sex marriage ban. “It is just a matter of listening and waiting for the other shoe,” Scalia wrote.

Defining Marriage

The couples challenging the Utah ban argued that the Windsor opinion “supports the district court’s conclusion that gay and lesbian persons must be included within the constitutionally protected right to marry.”

Utah pointed to other parts of Kennedy’s opinion that suggested the court was reaffirming the right of states to set the rules for marriage. Defining and regulating marriage “has been treated as being within the authority and realm of the separate states,” he said.

Today’s action “totally undercuts the argument that somehow same-sex marriage is inevitable,” said Brian Brown, president of the National Organization for Marriage, which opposes gay unions. “Today is a huge day for supporters of traditional marriage.”

Wolfson said the order isn’t a sign that the high court is leaning against conferring same-sex marriage rights.

“I don’t think this order today tells you anything about how the Supreme Court will ultimately rule,” he said. “This has to do more with the orderly and smooth process of an appeal.”

Elizabeth Cooper, a law professor at Fordham University in New York, said the justices “in some ways acted in keeping with the court’s tradition: when there is a lot at stake, moving slowly is the best approach.”

The case is Herbert v. Kitchen, 13A687.