It was a merry holiday season for gay rights advocates when United States District Judge Robert J. Shelby of the conservative state of Utah struck down Utah’s same-sex marriage ban.
Following the decision, Utah governor Gary Herbert urged Shelby to issue a stay, which would halt gay marriages until the courts resolve the issue. Shelby refused, yet the US Supreme Court soon stepped in and granted Utah’s request, temporarily stopping same-sex marriages in the state. Over the sixteen-day period between the decision and the stay, 1,300 same-sex couples were married but will lack legal status in their home state until the 10th Circuit Court of Appeals issues a decision.
If Utah is unsuccessful in its appeal, Shelby’s path may become a relatively straightforward way for judges in states with large conservative populations to declare a statute unconstitutional and allow for same-sex marriage.
Utah’s case seems to be the perfect opportunity for the Supreme Court to address the issue of whether state-level bans are constitutional, an issue which the court sidestepped in last year’s landmark marriage rulings. Shelby’s ruling is the first federal decision regarding a state denying recognition of same-sex marriages since the court struck down a portion of the Defense of Marriage Act (DOMA) in US v. Windsor. Currently, there are thirty-three states still do not permit same-sex marriage and a Supreme Court decision is crucial in determining if those states will continue to prohibit same-sex marriage. In light of both the Supreme Court’s unanimous issue of a stay and last year’s decisions on same-sex marriage, what can we expect if this case were to reach the Supreme Court?
With all the potential for legal complications, Utah being a prime example, it seems imperative for the Supreme Court to act expeditiously. However, reflection on the court’s history of issuing certiorari (a type of writ seeking review) suggests that the court is unlikely to hear another same-sex marriage case so soon after its intentionally cautious decision in US v. Windsor. The Supreme Court tends to avoid cases that are extremely politically charged and taking up such a case could essentially end the debate on the legality of same-sex marriage. The Supreme Court’s stay also seems to suggest that the high court would be reluctant to rule that state level bans are unconstitutional. The stay, which put a stop to same-sex marriages in Utah, had no dissents, indicating a view in favor of Utah’s amendment. Moreover, stays are granted in cases in which no stay will result in irrevocable harm and in cases in which the requesting party is likely to succeed on the merits in its appeal. Thus, the Supreme Court, by granting a stay in favor of the state, indicated a belief that the interim marriages could lead to injury and that Utah is likely to succeed on its appeals.
The Utah case also highlights the limitations of US v. Windsor and the role it has played in the gay rights movement. It is clear that justices may not be ready to prohibit state bans on marriage. The Windsor decision, written by Justice Kennedy, stressed the state’s unique control in issues involving marriage and the long-standing importance of federalism and the role of the states in governing marriages. Given the language of Windsor, it seems unlikely that the Supreme Court will prohibit state bans on same-sex marriage, or even accept a case on the matter at this time.
If the Supreme Court is unlikely to issue certiorari on Utah’s case or rule favorably for gay rights activist, where lies the next legal victory for gay rights activists and same-sex couples? First, while it seems unlikely, the Supreme Court, taking into account the public sentiment and attitude towards the issue, could actually prohibit state bans on same-sex marriage by declaring a constitutional right to this union. However, even if the Court does not take up this specific case, the fight for same-sex marriage does not end with the Court’s denial. What is more probable is for the Supreme Court to make incremental decisions in the next few years, before finally addressing the ultimate questions many years from now. For example, the Court could outline specific routes states might take to allow for same-sex marriage while prohibiting other such path.
If and when the Supreme Court accepts its next case on same-sex marriage will largely depend on an evaluation of states’ responses and interpretations of the Windsor decision. While Utah has chosen an unconventional path, it may prove to be a strategic and effective one in the battle for marriage equality, depending on the 10th Circuit Court of Appeals’ rulings on both cases, and the Supreme Court’s response to those decisions.