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Supreme Court stay on marriage shows desire for slower process

Published: Monday, Jan. 6 2014 8:40 p.m. MST

Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning.

Ravell Call, Deseret News

The Supreme Court’s decision to halt same-sex marriages in Utah indicates the court hopes to see a slower, more orderly process, legal experts say.

The stay issued Monday was no surprise to Rick Hasen, a law professor at the University of California, Irvine, who tweeted Sunday night that the court would likely issue a stay Monday and that it might be unanimous. He was right on both counts, it appears.

Hasen said he expected the court to move to forestall chaos in Utah and the other 32 states that now ban gay marriage. “Judges watch what others judges do,” he said, “and I think the Supreme Court sent a very clear message to other lower courts that these things should be stayed until they are finally resolved.”

On hot button issues such as abortion, gun rights and now gay marriage, Hasen said, the court prefers things to “move slowly and incrementally, and if there is going to be change it should be change from the top.”

Part of the chaos centers on the 900 marriages in Utah performed during the interval before Monday’s stay and whether those will be considered valid. California offers no real precedent because the marriages there took place under California law before the voters changed the law, Hasen said. In this case, the underlying Utah law remains untouched, should the state win on appeal.

“We have no idea,” said Michael McConnell, a law professor at Stanford, on whether the marriages performed in Utah will be valid going forward. He added that the Supreme Court stay at least freezes the number of cases at 900, while it could have gone much higher. “It should have been zero,” he said.

Some close observers of the court see hope for negotiated solutions that could allow for greater comity and respect on both sides. But whether the issues are settled in the courts or the legislatures, few see an easy path to a stable compromise.

Space for politics

Is this rapid movement, lurching and stopping what Justice Anthony Kennedy and the rest of the Supreme Court had in mind when they issued their decision in Windsor v. U.S. last summer?

Antonin Scalia seemed to think so in his dissent last summer when he pictured the court's majority as disingenuous schemers sending direct signals to lower courts that they were ready to find a right to gay marriage.

Scalia based this on a series of phrases in Kennedy’s majority opinion that implied the majority of the court saw no fair-minded basis for opposing gay marriage. Any such opposition could only be driven by “animus,” or raw hostility. When Judge Robert Shelby struck down Utah’s law just before Christmas, he cited both Kennedy’s language and Scalia’s characterization of it as authority.

I’m not sure Scalia’s opinion was either accurate or helpful,” said McConnell, who is director of the Constitutional Law Center at Stanford and a former Circuit Federal Judge.

McConnell, who has served as a member of the Deseret News Editorial Advisory Board, sees Kennedy as conflicted in his own thinking — revealing his own policy preferences but genuinely hoping to put off judicial policymaking if at all possible.

"The court was signaling that it wanted to allow space for politics,” McConnell said. The court could have held gay marriage to be a fundamental right in the Windsor decision, he said, and the court also sidestepped the California Proposition 8 case, with Justices Ruth Bader Ginsburg and Stephen Breyer voting to avoid deciding it. In short, if the court had actually been prepared to throw down a gauntlet, the opportunity was there last summer.

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