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SCOTUS playing wait-and-see on gay marriage


The Supreme Court’s brief order halting same-sex marriages does not hint at how the court would decide the ultimate question of whether states may ban same-sex marriages. But it does indicate that the justices feel more review is needed.

It would also seem to mean that the high court would not itself decide the issue in its term that ends in June.

Utah asked the court to stop the rush to the altar that has resulted in about 1,000 marriages since U.S. District Judge Robert J. Shelby’s Dec. 20 decision that Utah’s ban on same-sex marriages violated federal guarantees of equal rights and due process. Partly because Utah erred by not asking Shelby in advance to stay his ruling if it was adverse to the state, both Shelby and the U.S. Court of Appeals for the 10th Circuit denied Utah's request to put the ruling on hold.

There was no recorded dissent in the Supreme Court’s order halting the marriages, but also no explanation of the court’s reasoning for granting the stay. It means that the appeals court’s expedited review of Shelby’s ruling will continue — briefs are due before the end of the month. Even if the lower court rules quickly, the Supreme Court would have to sense an emergency in order to take the case immediately.

It seems more likely that the justices want to hear from other courts — there are similar challenges to state same-sex marriage bans pending around the country. The court will likely have more judicial input if it delays the issue until the term that begins in October.

Another factor: when the five-justice majority in June struck down the federal Defense of Marriage Act, it paid some attention to the traditional role of states in defining marriage. To allow the marriages to continue in Utah on the basis of a single federal judge’s ruling would have appeared to disregard that concern.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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