Utah marriage equality cases before SCOTUS

Late Friday, a panel of the 10th Circuit Court of Appeals ruled 2-1 in Evans v. Utah that Utah hasn’t proven that the appeals court should stay a lower court’s ruling requiring the state to recognize the 1,300 same-sex marriages that were performed in Utah in December and January.

The U.S. Supreme Court issued a stay order in Kitchen v. Herbert in January, until the 10th Circuit Court of Appeals completed action on the case. The same panel of the 10th Circuit judges in Evans v. Utah recently upheld the trial court order striking down Utah’s same-sex marriage ban in Kitchen v. Herbert.

The temporary stay in Evans v. Utah remains in place in order for the state to appeal the decision to the U.S. Supreme Court. The state had sought to have the lower court ruling put on hold for the duration of the full appeal. The temporary stay expires at 10 a.m. ET on Monday, July 21, according to the decision.

Lyle Denniston at SCOTUSblog.com reports, New test on same-sex marriage due at Court soon:

The U.S. Court of Appeals for the Tenth Circuit set the stage (.pdf) on Friday for a quick return by Utah state officials to the Supreme Court, seeking to delay another federal judge’s ruling in favor of same-sex marriage.  This time, the state’s plea will focus on same-sex couples who were married during a brief window of opportunity last winter, before the Supreme Court stepped into the Utah controversy.  State officials have until July 21 to file such a request with the Justices.

The state’s filing would not at this stage draw the Court into the basic constitutional controversy over whether marriage must be open equally to same-sex couples.  Utah officials plan to take that core question to the Court this summer or early fall.  The immediate issue this time will be whether the Justices will put on hold a judge’s ruling in May requiring Utah to recognize some 1,300 same-sex marriages performed between December 23 and January 6.  That ruling has since been put on hold, and will remain suspended at least until the Supreme Court acts.

The same panel of the Tenth Circuit that had made a two-to-one ruling in late June to strike down Utah’s ban on same-sex marriage, for gays and lesbians newly seeking to wed, strongly hinted Friday (again, by a divided vote) that it probably would also require the state to recognize the marriages that were performed in the state last winter.  The panel majority indicated that the state was not likely to win its pending appeal on that question.

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[O]n Friday afternoon, the Tenth Circuit refused, by a two-to-one vote, the state’s request for a longer postponement of Judge Kimball’s ruling ordering recognition of the 1,300 same-sex marriages.  However, the panel said it would delay this new decision until 10 a.m. (Eastern time) on Monday, July 21, to give the state a chance to go to the Supreme Court for a delay.  That, the panel stressed, is only a temporary stay.

Because Utah officials have moved energetically so far to delay all of the rulings on same-sex marriage, it is a near certainty that they will now go to the Justices with a plea to delay recognition of the winter marriages.

The Utah Attorney General’s office released a statement in response to the
court order:

“In response to the United States Court of Appeal for the Tenth Circuit denial of stay in Evans v. Utah, the State is prepared to file an Application for Stay before the United States Supreme Court in the coming days to avoid uncertainty, as noted by the dissenting Judge on the Tenth Circuit. The State
recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen v Herbert is resolved.”

SCOTUSblog continues:

If, as expected, the state now moves for a stay of the Kimball decision, that request would go first to Justice Sonia Sotomayor, who handles emergency requests from the geographic area that is the Tenth Circuit, which includes Utah.  She has the authority to act on her own or share it with her colleagues.

The fact that the Court is now in its summer recess would not prevent it from acting on the matter, in a temporary way.

Although this will be the first time the Justices will have a recognition-of-marriage issue before them that arises from the recent round of lower court rulings involving same-sex couples, the Court actually has dealt with a recognition issue before.

Lyle Denniston previously posted at SCOTUSblog, Utah same-sex marriage case on way to the Court:

In another development on same-sex marriage [last] Wednesday, Supreme Court Justice Samuel A. Alito, Jr., denied a Pennsylvania county clerk’s plea to stop such marriages in that state.  The Justice cited the Court’s order last month denying a postponement request regarding same-sex marriages in Oregon; that application was by a private organization.  Alito’s action appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted.  A federal judge struck down the state ban, and state officials declined to appeal.  The Schuylkill County clerk sought to appeal in their place, but that move has now been turned down at all three levels of the federal court system. The Pennsylvania case had no direct link to the Utah case discussed in the post below.

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Utah state officials will go to the Supreme Court in the “coming weeks” in a bid to revive the state’s ban on same-sex marriage, they announced Wednesday.  In a statement by Missy W. Larsen, the Utah attorney general’s chief communications officer, the state said it had opted to pass up a request for the U.S. Court of Appeals for the Tenth Circuit to reconsider en banc a three-judge panel’s ruling in June nullifying the ban.

This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages.

The U.S. Supreme Court is going to have to take up this appeal (and others moving through the Courts of Appeal) in its 2014-15 Term beginning in October. I would anticipate a decision in late June 2015. I will not venture to predict how this Court will rule.