I previously blogged about the 10th Circuit’s denial of a stay in the same-sex marriage recognition case. The temporary stay will dissolve on Monday, necessitating an emergency appeal to the Supreme Court.

Utah has filed its appeal, and it makes points similar to those made by Judge Kelly in dissent: allowing a single district court judgment to change the status quo, pending the appeal, is “not the law.”

This case thus 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 in Kitchen. That question is whether a federal district court is authorized to create private rights that vest against a state by issuing a non-final order commanding state officials to perform a ministerial act (in this case, granting a marriage license) and then refusing to stay that order pending appeal. Utah submits the answer to that question is “no:” Absent a final decision by an appellate court of last resort declaring Utah’s marriage laws unconstitutional, the democratically produced decisions of Utah’s citizens should not be overturned based on the discretion of a single federal district judge unchecked by subsequent appellate review. As Judge Kelly emphasized in dissenting from the Tenth Circuit’s denial of a stay, “The rule contended for by the Plaintiffs—that a federal district court may change the law regardless of appellate review and the State is stuck with the result in perpetuity—simply cannot be the law.” See App. C, Kelly, J., dissenting at 3. As explained in detail below, that indeed is not the law—as determined by this Court’s precedent and other binding legal authority.

So, once again, we have a frantic appeal to the Supreme Court for an emergency stay. The same thing happened when the District Judge in Utah failed to stay his ruling in December. As a result of his failure to stay, marriages were performed in the interim. Now, as a result of those interim marriages, the state is being ordered to recognize them. And, the judge did not stay that ruling about the recognition. Neither did the 10th Circuit. The same pattern repeated in Wisconsin, Indiana, and elsewhere, where the district judge did not immediately stay the ruling, allowing these interim marriages to proceed. Whatever you think about the merits in this case, this is not the normal course of order for civil rights litigation.

I see certain parallels here with the Little Sisters of the Poor case. While all Justices joined that order in January, the Wheaton College order was fragmented. I have a sinking feeling that we may similar results with whatever the Court orders Sunday night, or Monday morning. Maybe some of the Justices will become convinced that all of the recent district courts ruling in favor of same-sex marriage have changed the calculus since Kitchen v. Herbert, and that Utah does not have a high likelihood of success. Such dissenting votes (no way they amount to five) will be seized on by other district courts as evidence that future cases should not be stayed.

Of late, I keep going back to Hollingsworth v. Perry. In one sense, it would have been much better for the Court to just get it over with, and find Prop 8 was unconstitutional. That would have settled the matter right away, rather than making everyone go through this long, arduous process, with emergency frantic appeals, questions about recognition of interim marriages, and countless other legal issues. But, here we are.