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. —Bill Duncan, Marriage Law Foundation
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."
Reyes said his office is evaluating the legal status of married gay couples but wouldn't say when or if it would issue an opinon. He did not address whether couples who have marriage licenses may still get married legally.
Utah's 29 counties stopped issuing marriage licenses to same-sex couples after getting word of the Supreme Court hold. Salt Lake County turned away four couples Monday morning, according to County Clerk Sherrie Swensen.
A Utah marriage license expires 30 days after it's issued, according to state law.
Former U.S. Attorney for Utah Brett Tolman said he believes a couple could still legally get married as long as they do it during the time the license is valid. He also said married same-sex couples are entitled to all the benefits of a lawful marriage.
"We shouldn't be too quick to assess the stay as being an invalidation of Judge Shelby's ruling because it is not. An individual who is married is entitled to very distinct rights in many areas," he said.
The Supreme Court’s action calls into question a Dec. 24 directive from Gov. Gary Herbert’s office telling state agencies to comply with the initial ruling striking down Utah’s ban on same-sex marriage.
The Utah State Tax Commission was about to address whether same-sex couples will be able to file the same state income tax returns as other married Utahns or have to continue to file separately with the state as single taxpayers.
While the issue is still expected to be on the agenda for the commission’s meeting Thursday, commission spokesman Charlie Roberts said the agency is “waiting for direction from the A.G.’s office on how to treat the marriages.”
Last year, after the Supreme Court threw out the part of the federal Defense of Marriage Act, the IRS determined legally married same-sex couples would be treated as married for federal tax purposes no matter where they lived.
At that time, Utah tax commissioners decided gay and lesbian couples legally married outside the state would still be considered single when filing state income tax returns.
University of Utah law professor Wayne McCormack said Monday's Supreme Court order surprised him because stays at that level are typically reserved for life-or-death situations such as a pending execution.
Noting 18 states allow same-sex marriage, he said, "Where is the irreparable harm to the state in letting this go forward?"
McCormack and others believe the marriages should remain intact.
“Though future marriages are on hold for now, the state should recognize as valid those marriages that have already been issued, and those couples should continue to be treated as married by the federal government," said John Mejia, legal director for the American Civil Liberties Union of Utah.
But Gayle Ruzicka, president of the conservative Utah Eagle Forum, called for gay marriages performed in the state before the stay to be "summarily invalidated."
There is legal precedent in Utah where historically polygamous marriages were ruled invalid and "men with multiple wives were forced to abandon them, take their families and flee out of the country or risk imprisonment," she said.
Lawyers for the state filed an emergency application for a stay last Tuesday, saying that same-sex marriages being performed in Utah are an "affront" to residents' ability to define marriage through the democratic process and to the Supreme Court's role as final arbiter for a profoundly important constitutional question.
The state argued that allowing same-sex marriages causes irreparable harm to Utah's sovereignty and its ability to enforce state law. They also argued the state would incur "administrative and financial costs” in determining “whether and how to unwind" same-sex marriages should it win the case.
Herbert issued a statement saying the Supreme Court made the correct decision.
"As I have said all along, all Utahns deserve to have this issue resolved through a fair and complete judicial process," he said. "I firmly believe this is a state rights issue, and I will work to defend the position of the people of Utah and our state constitution."
Cody Craynor, a spokesman for The Church of Jesus Christ of Latter-day Saints, said regardless of court rulings that vary across the country, the church remains firm in its conviction that marriage between a man and a woman is deserving of protection because of its value to society.
“The action taken by the U.S. Supreme Court placing same-sex marriage on hold in Utah now allows for a more reasoned, thoughtful and mutually respectful discussion to take place," he said.
State Democratic Party Chairman Jim Dabakis said Monday stopping gay marriages "is not a Utah value." He said the children of gay parents are being told, "'You know what? You're really a second-class citizen. Your parents are not a real family.'"
Dabakis, who married his longtime partner the day of the initial ruling striking down Utah's ban on gay marriage, said the stay puts same-sex couples in a legal limbo, a "kind of nether-netherland." He said he believes that the state will, in the end, "do what's right" and accept same-sex marriage.
The National Organization for Marriage commended the Supreme Court.
“The decision by a single federal judge to redefine marriage in Utah is lawless, and we are pleased that the Supreme Court has put this decision on hold to allow the state to appeal it in an orderly fashion," the organization's president, Brian Brown, said in a statement.
No matter how this case is decided, Brown said, it highlights the need to preserve marriage in the Constitution.
“Everyone in America should be concerned to see how easily activist judges can cavalierly toss out the will of overwhelming majorities of legislators and voters alike," he said. "It’s becoming increasingly clear that the people of America need to reclaim their sovereignty and amend the U.S. Constitution to protect marriage as the union of one man and one woman.”
The Utah Eagle Forum said Monday it was "grateful" for the high court's stay.
"The Supreme Court sent the message that activist federal judges, such as Judge Shelby, do not have the authority to invalidate state constitutional provisions. Amendments are added to the state constitution by a supermajority of Utah legislators and the voters of Utah jointly, and their will should not be set aside so easily by a single appointed judge," Ruzicka said in a prepared statement.
The ACLU also issued a statement on the stay.
“Despite today’s decision, we are hopeful that the lower court’s well-reasoned decision will be upheld in the end and that courts across the country will continue to recognize that all couples should have the freedom to marry," said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project.
The ACLU filed a friend-of-the-court brief in the Utah case and challenged similar marriage laws in Pennsylvania, North Carolina, Virginia and Oregon.
Contributing: Lisa Riley Roche
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