Lessons from the Supreme Court’s Stay of the Utah SSM Recognition Appeal

July 18th, 2014

Twice, the 10th Circuit declined to stay rulings concerning Utah’s same-sex marriage law. Twice the state was forced to take emergency appeals to the Supreme Court. And twice all nine Justices agreed that the judgment should be stayed pending the complete resolution of the appeals process. If the lessons to be learned wasn’t obvious after the Court’s January 6 order, it should be really obvious after today’s order. Circumstances have not changed in this respect. Lower courts should continue to stay all rulings, and maintain the status quo ex ante.

Also, it should be clear that the Court’s refusal to stay the ruling in the Pennsylvania and Oregon cases was due to the odd procedural postures involved, as the government declined to appeal, and third parties attempted unsuccessfully to intervene. Utah, twice, has attempted to appeal to defend its law, and twice the Supreme Court has instructed the lower courts to stand by.