Utah has made such a mess of its anti-gay arguments that it's almost as if the state's attorneys were litigating the case while in some kind of stupor. In previous gay marriage cases, the party defending the bans generally included a request for a stay in their motion documents so that even if — or when — they lose, they could continue their hopeless anti-gay cause without having to recognize gay rights in the interim.
The stay is also important as a matter of law. Sure, once marriages start happening and people see pictures of happy couples, some old, some young, some black, some white, just celebrating their love, opposition to gay marriages tends to drop. More importantly, it is hard to wriggle out of the fact of gay marriages after they already exist without incident. Gays have been marrying in Massachusetts for almost 10 years and the sky hasn't fallen and religious rights have not been compromised. The longer gays can marry in Utah, the easier it will be for pro-equality advocates to argue that recognizing our right to marry causes no harm.
Despite the importance of the stay to their cause, Utah's attorneys never asked for one. Then Judge Shelby issued his decision, at which point Utah didn't ask him for a stay, but went right to the Tenth Circuit, the appellate court covering Utah. But that's not how it works. First the district court judge has to rule, then the circuit court. Utah's acting attorney general apparently needed that crash course in Law 101.
So, Utah went back to Judge Shelby, who, naturally, declined to interrupt the implementation of his own order. The State then returned to the Tenth Circuit only to lose officially. Meanwhile, hundreds of gay couples were marrying in almost every county.
Justice Sotomayor is Utah's only hope. In addition to serving as the final arbiters on all legal questions, the nine justices of the Supreme Court have administrative responsibilities. They divide up the circuit courts and whenever emergency motions come from one of those circuits, the assigned justice can either decide the motion herself or refer it to the full Court. Therefore, Justice Sotomayor could grant the stay, deny the stay, or ask the entire Court to make the decision (perhaps, though not necessarily, after some briefing). It's entirely up to her.
The standard she, and any other federal judge, should use when determining if they will grant stays of court orders is "irreparable harm": Will the losing party be irreparably harmed if the order goes into effect? Stays happen in several cases, like in a custody case where loss of custody for any extended period of time could do irreparable damage to the parent-child relationship, or in any case where money damages doesn't cut it. In a case like one challenging a ban on same-sex marriage, the state has to argue that, somehow, allowing gays to marry does irreparable harm to the state, to marriage, to government interests.
The problem is that gays have been marrying in Utah for some time and nothing terrible has happened. And gays have been marrying throughout the country and nothing bad has happened. What's more, the Supreme Court itself has said that gays are entitled to equal "dignity," a guarantee that is denied every moment they cannot wed. If there is irreparable harm, then, it is to the gay couples that the stay would prevent from marrying. In this way, a stay is not just unwarranted, it is harmful and unjust.
Some argue that stays should be granted to maintain the status quo until a final decision has been made. There are two problems with that argument. First, the status quo in Utah is gay marriage is legal. Second, if we granted every case a stay until the Supreme Court denied review or issued a decision, no court orders would function.
Others argue that the stay should be granted because gay marriage is such a divisive political issue and, therefore, courts should move slowly when dipping their toes into such waters. But such a basis for a stay, though unfortunately common, has no basis in law. You have to show that a deviation from the pre-order state of affairs would do irreparable harm to the aggrieved party. There is nothing in that standard about moving slowly.
Stays do not exist to let us take the scenic route to equality.
Follow me on Twitter: @ariezrawaldman
Ari Ezra Waldman is a professor and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.