As I’ve been predicting, the Supreme Court unanimously put the Utah same sex marriage ruling on hold this morning, pending disposition of the issue in the Tenth Circuit.
This is no surprise. Recognizing a constitutional right to same sex marriage is a big deal, which requires thought, consideration and preparation in the public if this is going to happen through the courts. In Utah, one of the most conservative states in the union, we went all of a sudden overnight from no gay marriage to gay marriage. There was little indication for those not following developments it would happen. I think it did happen because Utah’s lawyers continually botched their stay requests, and the Judge was following the arguments that were presented to him. And once things started, Utah botched again how it handled its request in the 10th Circuit.
Key here I think is lowering the temperature, even (especially) for those Justices who ultimately support finding a right to same sex marriage. When courts talk about preserving the status quo, it is the last peaceable status quo before the litigation—which was no same sex marriage in Utah. It is not the new “status quo” when people recently in Utah started having same sex marriages.
Now there are reliance interests of those people who did get married, and the messy question of how to handle those marriages in the interim. But I think they are casualties in the Supreme Court which wants to go slower than this abrupt change.
So what happens next? The Tenth Circuit will issue a ruling on the the lower court judge’s order. If the Tenth Circuit decides to continue the stay, then things will ultimately get to the Supreme Court in a longer time frame, with a decision as soon as this year but possibly next year. If the Tenth Circuit rules in favor of the plaintiffs and lifts the stay, the Court will have to confront what to do then, and that could be as soon as a matter of months.
The bottom line is that we should expect within the next year or two for the Supreme Court to issue a ruling on the merits of constitutionality of a ban on same sex marriage. Not decades, but probably a year or two.