UPDATED Thursday 8:35 p.m. Acting quickly to protect same-sex marriages that they argued are fully legal, four Utah couples urged the Supreme Court not to put their marriages on hold while the state seeks to undo them in a court appeal. It would be both unconstitutional and unprecedented in U.S. history, they argued, to undo a marriage that was entirely valid when performed, regardless of whether Utah’s ban on such marriages is ultimately struck down or upheld. The filing of the response clears the way for the Court to act on the plea by state officials for an order postponing any duty for the state to recognize some 1,300 same-sex marriages performed last winter. The couples’ response was filed hours in advance of a Friday morning deadline. State officials may file a reply.
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Arguing that a federal judge in Utah has attempted an end-run around the Supreme Court, top state officials in Utah urged the Court on Wednesday evening to spare the state from having to recognize now some 1,300 same-sex marriages performed last winter. This is the first of two new moves that Utah will be making in the Court to prevent such marriages in the state, at least until the Supreme Court has the last word on the controversy.
Within coming weeks, the same officials will be filing a petition asking the Court to answer the basic constitutional question of states’ power to forbid gay and lesbian marriages. The filing Wednesday was focused on a separate but related argument: that Utah should not have to officially recognize at this time the marriages that were performed during a window of legal opportunity at the end of last year. It referred to those as “interim marriages.”
Utah’s ban on same-sex marriage has been struck down by a federal appeals court, but that decision is on hold while the state prepares to pursue its formal appeal to the Justices. The Supreme Court itself had stepped in last January to temporarily stop same-sex marriages in Utah, prior to the appeals court ruling, but that did not occur before hundreds of those couples actually did get married.
Since the Supreme Court took that action, the new application argued, a federal judge in Salt Lake City has sought to “circumvent” that action by ordering the state to recognize those new marriages and by refusing to put that order on hold during an appeal.
No federal court, the officials contended, has ever ruled that a challenger to a law can obtain “vested rights” based on a trial court decision, “because such a rule creates an end-run around the normal appellate process.” That, they added, has the effect of shielding the trial court ruling “from effective appellate review.”
This case, the officials said, “presents an extremely important question of both federalism and federal procedure, a question that is closely related to, but distinct from, the question this Court will soon be asked to address” when Utah files its petition defending its laws that restrict marriage to one man and one woman.
Until there is a final ruling by a higher court that strikes down the Utah ban, the application asserted, “the democratically produced decisions of Utah’s citizens should not be overturned on the discretion of a single federal district judge unchecked by subsequent appellate review.”
The couples who managed to get married under that judge’s ruling should not be allowed to bring about a change in state law just by obtaining a marriage license, the state contended. “Constitutional rights do not spring into existence by mass social activity triggered by the unreviewed decision of a single district court judge,” it added.
The new request was filed with Justice Sonia Sotomayor, who has the authority to act on temporary legal matters originating in the geographic area of the Tenth Circuit — including Utah. Sotomayor has the authority to act on the plea herself, or share it with her colleagues. In a brief order Wednesday evening, she called for a response to the state’s plea from the same-sex couples’ lawyers, due by 10 a.m. (Eastern time) on Friday.
The Court is now in its summer recess, but that would not prevent action by Justice Sotomayor or by the full Court.
The legal battle over same-sex marriage in Utah is the furthest along among a series of cases, unfolding over the past year, that have tested the constitutionality of state bans on such marriages. As of now, it appears likely that the Utah case will be the first to reach the Court on the basic constitutional dispute.
So far, all of the federal and state court decisions in the past year have resulted in rulings nullifying state bans and, in many of the cases, requiring states also to recognize same-sex marriages by their residents who had been wed in other states.
The Utah case that has now reached the Court, at least on the preliminary question of a postponement, does not involve recognition by Utah of out-of-state marriages. The 1,300-plus marriages involved Utah residents married in Utah, between the time a federal judge struck down the state ban in late December and the Supreme Court in January put more such weddings on hold.
So far, the Utah dispute is the only one of the new round of lawsuits in which the Justices at any point had issued a delay. Most of the decisions on the controversy in lower courts have been put on hold either by trial or appeals courts, while appeals moved forward.
Different federal judges in Utah, in separate decisions, first struck down the state ban and then ordered recognition of the new marriages. The judge’s ruling against the ban itself came in the case of Kitchen v. Herbert. The recognition decision came in the case of Evans v. Herbert; the application for a stay in that case is now docketed as 14A65.
Thus, the Supreme Court will soon have before it separate state appeals on each issue. Utah officials had already announced plans to appeal “in coming weeks” in the Kitchen v. Herbert case. The filing on Wednesday sought a postponement of Evans v. Herbert until appeals are resolved in that case.
In seeking a temporary order against recognition of the marriages now at issue, the governor and attorney general contended that the Salt Lake City judge who commanded recognition has engaged in “de facto circumvention” of the Justices’ January order in Kitchen, imposing a stay at an earlier stage of the constitutional dispute.
As of this moment, the application contended, a single district judge who then ordered recognition has changed the law on same-sex marriage even before the appeals process can be completed. “That is not the law,” the filing contended. In fact, that ruling is so flawed that the Supreme Court should consider summarily overturning it, the officials suggested.
The U.S. Court of Appeals for the Tenth Circuit last week refused to block the marriage-recognition order by the Salt Lake City judge, but that court did give state officials until next Monday morning to ask the Supreme Court for a delay. That is the move that those officials took around the dinner hour on Wednesday.
There is no specific timetable for Supreme Court action but, since the order to recognize the performed marriages is now due to go into effect on Monday, the Justices are likely to act soon after the reply is filed on Friday by the same-sex couples.
Justice Sotomayor or the full Court does have the option of issuing a temporary delay order, to give themselves more time to ponder a longer postponement.
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