Utah Petitions the United States Supreme Court to Stay Gay Marriages After a Federal Court Strikes Down its Ban as Unconstitutional

The recently-concluded holiday season found parties on both sides of the marriage equality debate embroiled in what may prove to be the next matter decided by the United States Supreme Court on this issue. A decade ago, in 2004, two-thirds of Utah’s voters approved a ban on same-sex marriages, defining “marriage” as occurring only between a man and a woman. However, on December 20th, U.S. District Judge Robert Shelby invalidated this law when he ruled that Utah’s prohibition of these unions violates the right to due process and equal protection for gay and lesbian couples guaranteed under the United States Constitution. Judge Shelby’s ruling is the first decision to strike down a state marriage ban after the United States Supreme Court issued its opinion on same-sex marriage this past summer in United States v. Windsor.

Subsequent to Judge Shelby delivering his decision invalidating the ban, nearly 1,000 same-sex marriages have been performed in Utah, a conservative state where the majority of the population is Mormon. The State – claiming that the decision has created a “rush to marry” before its validity is tested on appeal – had previously asked both Judge Shelby and the U.S. Circuit Court of Appeals for the 10th Circuit to impose an emergency stay of the ruling while it is being challenged on review. The State’s request was denied once by Shelby and three times by the 10th Circuit, although that court set an expedited hearing schedule to review the appeal, requiring all filings due by the end of February.

Utah thereafter turned to its final option, elevating its request for a stay to this Nation’s highest tribunal. Under the Rules of the Supreme Court, emergency petitions are filed with the Justice who oversees the Circuit – in this case, with Justice Sonia Sotomayor. Sotomayor may either handle the application for a stay herself, or she may refer it to the full court for consideration. If she decides to rule on her own, the losing party may ask another Justice to reconsider the ruling. By custom and practice, however, the matter would then likely be handled by the full court. If the full court considers the issue, a five-justice majority must agree to order the stay, and there is no set time within which the decision must be made.

In his ruling invalidating the Utah statute, Judge Shelby noted that prior decisions of the United States Supreme Court had recognized that the freedom to marry is a fundamental right based on individual liberty, privacy and freedom of association — rights that under the 14th Amendment trump a State’s rights where there is a conflict between the two. Shelby also found that Utah presented neither a rational basis for denying same-sex couples the right to marry, nor a “rational link” between a ban on same-sex marriage and its interest in having children raised by opposite-sex, married couples. The Judge did determine, however, that a law barring same-sex marriage “humiliated” children in such households “for the same reasons that the Supreme Court [in Windsor] found that [the federal Defense of Marriage Act [DOMA]] harmed the children of same-sex couples.”

In attempting to obtain a stay of Judge Shelby’s decision from the United States Supreme Court, Utah must show an error by the lower courts in denying the stay request, that it is likely to prevail on appeal and that serious damage will occur if the ruling is not stayed.

In its 100-page application for a stay, Utah attempted to meet its burden on each point. It first argued that this case “squarely presents the question that this Court expressly left open” in its decision in Windsor ­- i.e. whether states may bar same-sex couples from marrying and refuse to recognize marriages performed in other states. In Windsor, the Supreme Court struck down the DOMA provision as an improper federal intrusion because it barred same-sex couples from receiving federal benefits even in states where they were legally married. According to Utah, the High Court’s reasoning and decision in Windsor preserved the power of states to regulate and define marriage, and thus, in its view, Judge Shelby had improperly created a new constitutional right for same-sex couples by ruling that its ban violated federal guarantees of due process and equal protection.