Supreme Court Halts Gay Marriages in Utah


The Supreme Court has put Utah's same-sex marriages on hold pending appeal of the case.

Sotomayor apparently referred the matter to the full Court rather than rule independently, which she had the option to do.

Reads the order:

"The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 32013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit."

Writes Lyle Denniston at SCOTUSblog:

The order appeared to have the support of the full Court, since there were no noted dissents.  The ruling can be interpreted as an indication that the Court wants to have further exploration in lower courts of the basic constitutional question of state power to limit marriage to a man and a woman.  Had it refused the state’s request for delay, that would have at least left the impression that the Court was comfortable allowing same-sex marriages to go forward in the 33 states where they are still banned.

Since the Monday order provided no explanation, it was not clear which of the arguments made by state officials had been convincing to the Justices.  The state had argued, among other things, that U.S. District Judge Robert J. Shelby’s decision nullifying Utah’s ban had preempted the power of the Supreme Court to be the final arbiter on that question.  The state also had contended that its interest in enforcing its ban would have been undercut by a refusing of a stay.  And it had said that it would be difficult to untangle marriages that had occurred in the meantime, if the ban were ultimately upheld in the courts.

The stay will remain until the 10th Circuit Court of Appeals decides whether to uphold or overturn Shelby's ruling.

13A687 Supreme Court Order by Equality Case Files

Developing (refresh for updates)…


  1. JackFknTwist says

    Huh ?
    Was it Sottomayor ?
    Did she refer to the whole Court and give a stay in the interim ?
    Did she just give a stay pending her further consideration /
    More info needed.

  2. Steve says

    I’d say this is a good thing because the outcome could make gay marriage legal in all 50 states in one swoop. It sure makes it a fair better solution than the piecemeal of “winning” each state.

  3. JackFknTwist says

    @ STEVE :
    You could be right. This may refer the issue to the whole Supreme Court.
    Sottomayor would hardly have done that if she didn’t have the votes there……I hope !

  4. SpaceCadet says

    Doesn’t sound good on paper but it sounds like a formality pending the lower court’s decision which I think has a very good chance of upholding Judge Shelby’s. When is that supposed to occur again?

  5. Kevin M says

    Jack – apparently she did refer the matter to the entire court rather than rule herself (which is her prerogative). And (assuming we win in the long term) that may have been prudent, simply to avoid the spurious charge that “one rogue district judge and one liberal activist Supreme Court justice” brought same-sex marriage to Utah.

    Steve – this stay hasn’t really got anything to do with making gay marriage legal in all states. Stay or not, that’s only going to happen if the Court takes up one of the challenges to a state ban on SSM, and it could do that with or without taking action on the stay.

  6. JackFknTwist says

    OK :
    So now we know that the issue will may its weary way through the 10th Circuit of Appeals and may eventually end up with SCOTUS.

    So bring on the Tenth Circuit !

  7. nn says

    What will happen to those who have already married? Especially if it eventually same sex marriage will be banned in Utah?. Rest the marriage to still be valid, such as for prop 8 in 2008? or they will be void?

  8. Malcolm says

    I just think it is delusional to actually believe this Supreme Court will find a national right to marriage for something that 32 states forbid. The Court has never gotten that far ahead of the states in any major issue, and Justice Kennedy and even Ginsburg have made it is clearly they don’t want to even consider this. Sometimes when you try to force their hands, they end up slamming the door on your claim of a federal right.

  9. Jack M says

    They do not want to stick their necks out and be blamed by conservatives for allowing same sex marriage to go ahead in all 50 states. They’ll sit back and let the states battle it out.

  10. james st. james says

    The conservatives on the SC will not revoke the gay marriages already licensed. To do so would involve an awful lot of wedding gifts being returned, and THAT would be bad for business.

  11. D'shaun Guillory says

    It’s not all bad news and Sotomayor did not stay the ruling alone out of Utah, all nine justices came to the same conclusion. Utah will temporarily halt these marriage licenses while the 10th circuit of appeals makes a full court decision on whether to honor the lower court ruling overturning the ban on gay marriage in Utah or to allow the ban to continue. Whatever that decision is will ultimately be appealed to the US supreme court. Do not be alarmed many observes foresaw this type of scenario. If a lower makes a ruling that broad, the state is no going to go without a fight and by that a mean the state of Utah. But keep in mind, if the 10th circuit of appeals rules in favor of allowing marriage equality this will indeed be the final nail in the coffin for gay marriage bans everywhere as the US Constitution will finally federally be interpreted as protecting marriage equality. If this is the case, no gay marriage ban can stand anywhere in the country and new legal precedent will be set. Hope that brings some calm to the room.

  12. crispy says

    Tyler, prior to Brown v Board, only 16 states required racial segregation in the school systems.

    I looked up the Loving case too as it’s a stronger comparison to gay marriage, and prior to it only 17 states still prohibited interracial marriage.

    So unfortunately, Malcolm is right about this point. With 32 states currently banning same-sex marriage, we don’t have the numbers on our side just yet for a sweeping Supreme Court decision. Work still needs to be done at the state levels.

  13. Jake says

    At the time of the 1954 BROWN decision, laws in 17 southern and border states (Delaware, Maryland, Virginia, West Virginia, Georgia, North Carolina, South Carolina, Florida, Tennessee, Kentucky, Alabama, Mississippi, Louisiana, Arkansas, Texas, Oklahoma, and Missouri) and the District of Columbia required that elementary schools be segregated. Four other states—Arizona, Kansas, New Mexico, and Wyoming—had laws permitting segregated schools, but Wyoming had never exercised the option, and the problem was not important in the other three. Although discrimination existed in the other states of the Union, it was not sanctioned by law. Unlike gay marriage today, the majority of states did not have school segregation laws at the time of Brown. Further, the Warren Court of the 1950’s was one of the most activist courts in history. It was the most progressive and aggressive court we have ever had. Today’s Court is nothing like it. Not even close.

  14. Yeahyoutoo says

    Whether or not the Equal Protection Clause applies as it relates to sexual identity is still an open question. The prior decision on DOMA only dealt with discriminatory federal policies against individual states. Prop 8 would have settled that question, but the Court dismissed the appeal on standing. And with EDNA making its way around Congress, don’t expect this Supreme Court to weigh in until the dust settles.

  15. Javier says

    We shall see. But as my Con Law professor says, you will not get the Supreme Court to find that 32 states are violating the law on a major issue, especially when those 32 states’ laws are almost all the result of direct popular votes. It would be an unprecedented ruling against the laws of 2/3 of the states, with a backlash that would dwarf the outrage over Roe. You can bet on that.

  16. Ken says

    At some point, a SCOTUS majority is going to seek an end to a rapidly escalating and confusing mess of ‘your marriage is legal here but no there.’ By the time it reaches their docket, more states will have legalized gay marriages – maybe even having crossed the 25 state threshold. Five or six Justices will then finish the job.

  17. Howard B says

    It wouldn’t surprise me if SCOTUS decides not to touch this no matter how the 10th Circuit Court rules. I think they want to see this play out in the states some more before they get involved again.

  18. AJ says

    I think SCOTUS issued a stay so they cannot be judged and blamed by conservatives in UT for allowing the marriages to continue. However, the Supreme Court has the right to dismiss/reject an appeal that the state of UT will eventually make after the 10th Circuit makes its ruling in favor of marriage equality. The Supreme Court will more than likely wait for the right case to take out of the current 23 states that have lawsuits challenging the bans on the freedom to marry.

    The Supreme Court is as much politics as is Congress. It may take a few more years…but you can bet the Supreme Court is waiting for public opinion to swing above 60% in favor of the freedom to marry.

  19. Jack says


    Perhaps, but perhaps not. The point of the Equal Protection Clause is that majoritarian votes don’t matter.

    But you may be right about their hesitance, and for that reason I think that a Full Faith & Credit Clause challenge would be a better vehicle to get in front of SCOTUS. That way they can just say that states have to recognize other states’ marriages, and without saying as much, that will mean gay marriage everywhere. Unless of course, we run into the argument that citizens of states that ban gay marriage are going to other states just to get married and then coming back, and that they shouldn’t have to recognize those marriages. But I’m not sure if that’s a viable argument.

  20. says

    A lot of people reading a lot into a stay. It is what it is. (And some of the negative nellies are always negative around marriage equality for some reason … )

    The Supreme Court may not be ready to make a broad ruling yet, and there is no case directly before them now. It’s in their nature to move slowly. What is indisputable is that the marriage equality movement is advancing quickly and that the unequal patchwork of marriage laws across the US is unsustainable in the long-term.

    As for comparisons to past cases like Loving, one must also remember that the public opposition to mixed-race marriages even after Loving was much greater than it is today to same-sex marriages. (Don’t forget a majority approves of marriage equality, though the disapproval is greater in the red states.) And the comparison to Roe and abortion is also limited since opposition to gay couples marrying decreases with more marriages–most people (aside from the true zealots) quickly realize it really doesn’t affect them.

    If Shelby’s ruling is not upheld that will be a big deal. The stay, not so much. I agree that having more states in the equality column before the SC takes the next case is important, but that’s been true all along.

  21. Javier says

    IT is clear that marriage equality needs Kennedy to prevail. How has Kennedy found newly recognized constitutional rights in previous cases? In both the sodomy and juvenile/mentally challenged executions contexts, he found them by assessing how many states are currently recognizing that right by statute or court decision. He also sometimes looks to foreign countries and organizations for support. So, for Kennedy, the number of states already doing something is very important. For the sodomy and juvenile/mentally challenged executions decisions, Kennedy could say, hey, the majority of states already recognize this legal truth, I am just nudging a few straggling states to catch up. He can’t do that with marriage equality.

  22. Gerry says

    People are reporting that this decision was unanimous…that isn’t an established fact. SCOTUS orders are NOT decisions. You don’t get to see who voted for what. All we know for sure is that a majority of justices agreed there should be a stay.

  23. anon says

    The marriages that took place should remain valid for the foreseeable future.

    The SC doesn’t like to encourage challenges to state laws, so any attack against a state law requires a “full and fair” hearing–essentially any court hearing the case should give every consideration to the state during the litigation. The reason for this is to discourage people using the court system to temporarily get around a law. For example, a polluter can take a state to court, but if the law was struck down pending appeal then pollution could take place legally while the issue was dragged out in court.

  24. says

    ‘State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclu­sive province of the States.” Windsor pg 16

    Kennedy on marriage rights, Windsor: ‘Must respect constitutional rights.’ The federal right is already guaranteed by the Constitution. In order to take it away states have to show how game-sex marriage harms the state. It doesn’t. They can’t.

    Surprised at the stay but not dismayed. Everyone expected this case would be heard at the 10th. This is SCOTUS deferring to State so that opponents won’t be able to claim bias or activist judges as an excuse in future. They got their stay. When the battle is over they can claim it wasn’t a complete rout. More importantly this is also SCOTUS telling us to keep working and not get complacent. Windsor was not game over.

  25. Bingo says

    This was predictable and understandable. It has little to do with specific arguments. It’s all about protecting the court from the “activist judges” accusation. We look at this in terms of SSM. The judges have a longer and wider view.

  26. jamal49 says

    I’ve read every comment posted thus far and I am so impressed with the thoughtfulness and insights of everyone. I am one of those who has fretted about this decision by SCOTUS because it seems that our rights are so fragile and that our lives are being held hostage to the whims of a judicial majority or a volatile electorate. It is frustrating.

  27. 604brian says

    Sigh.. going onto my 8th Anniversary with my husband here in Canada. It hurts my heart when I hear of things going backwards in the US, even when the overall outlook will be positive in the long run.

  28. says

    We’re 5% of the population. We’ve had to fight every day of our lives for rights that most of the rest of society take for granted. EVERY DAY we face ridicule, torment, loss of job, loss of housing, our young are bullied to the point of suicide and are thrown out onto the streets by their own parents. Opponents of equality never address these issues. They’re never required to. They’re arguments are ‘religious liberty’ and until recently people have bought that. We’ve challenged them to open their eyes and they are. The country is waking up. They’re starting to understand that what we’re being subjected to could happen to them if successful with us. Ours is the greater battle not just for our own civil rights but for the preservation of government that is truly a Constitutional Republic.

  29. says

    I’m annoyed at anything perceived to be a win for the NOM groups. I know they’ll take even a whisper of news going their way as a huge WIN for their side, and just keep dragging this stuff out as long as they can.

    I’m even more annoyed that SCOTUS should have to wait for a majority of states to legalize marriage equality in order to rule in favor of it. I don’t think equal justice should have to wait for public opinion to “catch up.” Doesn’t make sense to me. But I do understand that it’s an unfortunate reality.

    I just hope see this doesn’t take five years like CA did.

  30. Rose says

    This may have been expected, but it DOESN’T make it right and I don’t believe the State will win in the end!!!

    There is NO such thing as “GAY” or “SAME-SEX” Marriage and if the right to marry is a FUNDAMENTAL right……then it is a FUNDAMENTAL RIGHT for ALL American Citizens NOT just the straight ones!!!

  31. HOFFENPOT says

    I wouldn’t get too upset by this. I was halfway expecting the stay. If the 10th Circuit upholds Shelby’s ruling, it will definitely be a “wow” moment. If it strikes down his ruling, we need to move on to other states. It’s heartening that the nearly 1000 marriages in Utah won’t be nullified. We can’t go backwards, the worst is that we come to a standstill for years. Keep on plugging and pushing. Time, demographics and the constitution are on our side. All eyes are on the 10th now.

  32. Keith says

    I have an odd question in all of this that has yet to be brought up by anyone else. If Utah (and thereby, all the other states that have constitutional bans) is allowed to constitutionally retain its ban and determine that gays and lesbians have no federal constitutional right to marriage equality, then doesn’t it stand to reason that any state that currently allows it could be in jeopardy of a state’s populace going back to the ballot and reinstating a constitutional ban? At what point will gay and lesbian couples be able to rely, with any certainty, that their marriage is permanent and legally valid if any state, at any time, can just constitutionally ban it? At what point does the patchwork of marriage laws for the LGBT community become untenable and unmanageable whereby the US Supreme Court will have to make some sort of ruling that makes it clear and permanent that we can legally marry without worry that at some future point it will be taken away again by a state’s populace or legislature?

  33. brian says


    All of the states that have legalized gay marriage have no chance of overturning it. It’s popular in those states and there isn’t much effort to repeal.

  34. says

    @Keith: I agree with Brian. In most states with marriage equality banning it constitutionally after-the-fact is difficult if not impossible. The bigots in Iowa have tried and failed. The repeal effort failed in NH even with a big Republican majority. And these were the states where repeal stood a chance. In the others it doesn’t, both because there is no easy mechanism in place (or in some states, none) and because there is no will among the public or legislatures–except within a tiny minority–to revisit the issue and go backwards.

    The 17 are safe no matter what happens in Utah. Undoing those legal marriages isn’t going to happen. And in Utah the state still needs to make a rational argument for continuing the ban. The challenge will be picking up more states before the next case goes before SCOTUS; with perhaps a couple of exceptions, the most winnable ones are already in the equality column.

  35. woody says

    So, they’ll go to the 10th circuit. They lose (as this was the court that refused to grant a stay because utah wasn’t suffering any harm). Then, after they lose, the 10th will stay its own decision in deference to today’s decision by the supreme court.
    That means gay in utah will be nowhere until the supreme court either decides the case or refuses to hear it.

  36. JackFknTwist says

    @ PPP :
    Yes, it is imperative that Hillary be elected…….followed by Elizabeth Warren also for two terms.

    And we must hope karma or some similar good spirits intervene and remove Scalia and Thomas, perhaps to some south Pacific Island……and we never hear their brutal bigotry again.

  37. JJ says

    The lesson for me is that the framework the courts have for deciding when to grant a stay doesn’t apply to gay rights cases. All the legal interviews I read found Utah’s stay request weak. If the court had a good reason to stay that fit their own framework, they could have explained. Now to all observers, the plaintiffs appeared to have the better argument and the court simply went against them for no apparent reason. The same happened in the Prop 8 case. Judge Walker denied the stay, the parties made the same arguments (plus standing arguments) to the 9th Circuit, and the 9th granted the stay without explanation.

  38. sthrnmn says

    all of the “this may not be a bad thing” and “this is really good” would be more convincing had you not been touting how Utah has ssm and no court will consider a stay. They have cracker barrel, Wall Mart, Duck Dynasty but you have Utah, well not really.

  39. sthrnmn says

    all of the “this may not be a bad thing” and “this is really good” would be more convincing had you not been touting how Utah has ssm and no court will consider a stay. They have cracker barrel, Wall Mart, Duck Dynasty but you have Utah, well not really.

  40. says

    The tell from this decision is the ‘no explanation’ for the stay and that SCOTUS didn’t take the case up. That was SCOTUS saying in essence we’ve nodded to the State now the onus is on them to prove their case in Court.

    Utah can’t. SCOTUS knows they can’t.

  41. taylor says

    Why anyone believes anything a politician says is beyond me. Our current president was against ssm in 2004, stating marriage is between a man and a woman. In 2010 he was for civil unions but not on board with ssm. He goes on to say his view on ssm is evolving as the attitude of the country evolves. Seriously? that sounds like such a politician. I firmly believe with all my heart whatever you think. BS. Is marriage equality something that you need to evolve to be for. It is like Sen Byrd (RIP) the ex Klansman who “evolved” to be for civil rights. May it have something to do with looking like a racist, a sexist, a fool.

  42. says

    People do grow & change on issues. And though it may at times seem to not be the case politicians are people.

    Members of my own family and their very religious friends have come to me and apologized for the harm they helped create by voting for legislators that passed laws to make me unequal. Their excuse is almost always ‘I didn’t know. That’s not what I was told.’ That’s what exposure & visibility accomplishes and that’s why our opponents try so hard to restrict it and why we fight so hard to make it possible.

    The divide that separates us is shared experiences. Do you honestly think that if an equality opponent had to live our lives for even a little while that they wouldn’t see the damage they cause?

    Really it comes down to asking yourself ‘what kind of society/country/world do we want to live in?’ Is oppressing a group of citizens the right of a majority or those with a religious view that condones it or is everyone to be regarded as equal? How does my being able to marry the guy I love harm your marriage to your wife?

    As for our current President … stop for a second and think of the alternatives offered. McCain/Palin No thanks.

  43. Randy says

    It’s very hard to justify a stay, when there’s no possible way that a stay could benefit anyone.

    Same-sex couples are already married in Utah. It makes no difference to the state whether it’s one thousand or ten thousand. But it does make a difference to the couples and their children.

    Now we’ve returned to the “crazy quilt” situation that California had. You have same-sex couples married in Utah. You have Utah couples (there must be at least one) who got married outside Utah during the time same-sex marriage was valid inside Utah. There are same-sex couples with valid marriages that were recognized inside Utah for the past week or two. And there are same-sex couples with valid out-of-state marriages that hadn’t asked yet for them to be recognized in Utah. On what basis can some of them be recognized, but not others? The US Supreme Court just created a big mess.

  44. JJ says

    @Seriously: “SCOTUS didn’t take the case up”

    I don’t think that was ever on the table. Utah didn’t petition the court to take the case. They only asked them to stay the district court ruling until the 10th circuit rules.

  45. JJ says

    @Seriously, I don’t think SCOTUS has ever taken a case it wasn’t asked to take. (Indeed, I doubt even SCOTUS has jurisdiction to take a case without a petition.) Even if I’m wrong, it certainly isn’t their normal practice. The fact that they didn’t do something highly extraordinary in this case is indicative of nothing.

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