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U.S. Supreme Court puts same-sex marriage in Utah on hold

New A.G. says Utah gay couples who recently married are in 'legal limbo'

Published: Monday, Jan. 6 2014 10:10 a.m. MST

Diana Smith fills out a marriage license on the back of Karen Brinkerhoff outside the county clerks office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013.

Matt Gade, Deseret News

SALT LAKE CITY — The U.S. Supreme Court put the brakes on same-sex marriage in Utah on Monday, setting up a legal battle in federal appeals court that could eventually wend its way back to the high court.

Meantime, the status of gay and lesbian couples who tied the knot in Utah the past two weeks or obtained marriage licenses but haven't wed is unclear.

The Supreme Court granted the state's emergency application for a stay in a two-sentence order that appears to have included all nine justices without a dissenting vote. The order will remain in place pending the outcome of Utah's appeal of U.S. District Judge Robert J. Shelby's ruling last month that struck down the voter-approved law defining marriage as between a man and a woman.

"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," according to Lyle Denniston on the U.S. Supreme Court blog.

"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 33 states where they are still not permitted by state law."

The Denver-based 10th Circuit Court of Appeals, which earlier denied the state's request for a stay, has outlined an accelerated schedule for the appeal of Shelby's ruling. Utah's first arguments are due Jan. 27. A response from attorneys for the three gay and lesbian couples who challenged the law is due Feb. 18. Any reply from the state must be filed by Feb. 25.

Bill Duncan, head of the Utah-based Marriage Law Foundation, called the Supreme Court order a "very positive" development.

"We said from the beginning that Judge Shelby should have issued the stay, and the Supreme Court seems to be affirming that — not only one justice but the entire court, and we assume without any dissent since there was none noted in the decision this morning," he said.

The court is agreeing with the state's position that it hasn't spoken on the issue so it's not time for lower courts to invalidate state marriage laws, said Duncan, who also works as the Sutherland Institute's director of the Center for Family and Society.

Although the order is bare bones, he said, it's fair to assume that the high court "doesn't sense this is a done deal in the way Judge Shelby assumed it was. They clearly want a little more time to make a decision about what the Constitution requires of the states."

James Magleby, an attorney for the three gay and lesbian couples who filed a lawsuit challenging the state's definition of marriage, called the decision disappointing for Utah families "who need the protection of marriage and now have to wait to get married until the appeal is over. Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Magleby said it's a temporary order and not unusual for the court to stay a decision declaring a state law unconstitutional pending appeal.

Shelby ruled that Utah's Amendment 3 defining marriage as between one man and one woman violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

Newly appointed Utah Attorney General Sean Reyes said the Supreme Court order takes Utah back to where it was before Shelby's ruling. Reyes said he doesn't know what it means for the nearly 1,000 same-sex marriages performed in the state since Dec. 21. He described those couples as being in "legal limbo."

"There is no precedence, I believe, for this," he said. "This is precisely the uncertainty we were hoping to avoid by requesting a stay immediately upon the decision of the district court."

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