The Supreme Court halted same-sex marriages in Utah on Monday, returning to center stage the question of whether there is a constitutional right to marry that states may not withhold from gay men and lesbians.
The court’s two-sentence order stayed a decision from a federal judge in Salt Lake City that had cleared the way for same-sex marriages. About 1,000 such weddings were performed in the 17 days that followed — unions that the state’s attorney general said are now in “legal limbo.”
Monday’s order, with no recorded dissents, gave no reasoning for granting the stay and no clues about how the justices may ultimately decide the issue.
It was only six months ago that the court gave major victories to gay rights advocates in its first full consideration of same-sex marriage, including requiring the federal government to recognize such unions performed in states where they are legal.
But a flurry of legal challenges filed around the country since then could mean that the court will be called upon sooner rather than later to decide the fundamental question it sidestepped: whether state bans on same-sex marriage are unconstitutional.
Monday’s order indicated that the justices want lower courts to weigh in on the legal issue before giving what might seem to be even implied approval of the federal judge’s decision that the bans cannot stand. Without emergency action, the justices would not consider the issue in the court’s current term, which ends in June.
Utah did not ask the court to tackle the issue now but wanted to stop the weddings while the appeals continue.
Utah Attorney General Sean Reyes (R) said the state has not decided whether to take additional legal action against the marriages that have taken place.
“There is not clear legal precedence for this particular situation,” Reyes, who took office just 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.”
There was a rush for marriage licenses after U.S. District Judge Robert J. Shelby ruled Dec. 20 that Utah’s ban on same-sex unions violated constitutional guarantees of equal protection and due process.
The state said each marriage was an “affront” to its ability to define marriage as between only a man and a woman, as well as to the Supreme Court’s role as the final arbiter of whether state bans violate an individual’s constitutional right to equal protection.
Both Shelby and the U.S. Court of Appeals for the 10th Circuit in Denver denied the state’s request for a stay. The court in Denver has put a review of Shelby’s decision on a fast track.
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.”
One couple who challenged the law put wedding plans on hold, and Magleby 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 legal battles follow the carefully weighed decisions on same-sex marriage delivered by the Supreme Court at the close of its term in June.
In U.S. v. Windsor, it voted 5 to 4 to find unconstitutional a key portion of the Defense of Marriage Act (DOMA), which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to people in such unions.
In Hollingsworth v. Perry, the court let 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, avoiding a decision on whether state bans offend the U.S. Constitution.
All agreed that the question of same-sex marriage would come back to the Supreme Court eventually, but the swiftness — and the venue, conservative Utah — have been surprises.
When the court heard arguments on same-sex marriage in the spring, nine states and the District allowed such unions. Not including Utah, which adopted its constitutional ban in 2004 with the approval of 66 percent of voters, the number now stands at 17. Following the Supreme Court decisions, the highest courts in New Jersey and New Mexico have ruled that same-sex marriages must be allowed in their states.
Shelby, appointed by President Obama and endorsed by Utah’s two conservative Republican senators, was the first federal judge to rule that the court’s reasoning in the DOMA case means that a state constitutional amendment banning same-sex marriage cannot 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 all the justifications Utah offered for restricting same-sex couples from the fundamental right to marry were offered by the federal government in defense of DOMA and were rejected by the court’s majority.
The Supreme Court’s opinion, written by Justice Anthony M. Kennedy, struck down part of DOMA on equal protection and due process grounds. But it paid attention to the traditional roles that states play in defining marriage.
For that reason, the court may have been reluctant only months later to give what might seem like approval of Shelby’s decision.
In June, dissenting Justice Antonin Scalia described the majority’s reference to federalism as window dressing and said the ruling “arms well every challenger to a state law restricting marriage to its traditional definition.”
As Reyes, the Utah attorney general, noted, there is no direct precedent for whether the same-sex marriages performed in the state will stand should Shelby’s decision be overturned.
In California, thousands of same-sex couples were married in the months between a 2008 decision by the state Supreme Court to allow such unions and voters’ decision to ban them. The state court ruled later that those marriages were valid, and weddings resumed after the U.S. Supreme Court’s decision.