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A little behind-the-scenes primer on today’s Supreme Court news

LGBT Legal Cases Marriage equality Marriage Equality Trials

As you’ve probably read, the Supreme Court today stayed the district court decision bringing marriage equality to Utah, meaning that while same-sex couples have been able to marry in the state for the last few weeks, they are no longer permitted to do so.

The Court’s brief order stated simply, “The application for stay presented to Justice Sotomayor and by her referred to the Court is granted.”  Still, this short sentence is still significant to SCOTUS watches in light of the Court’s protocols on non-capital stays.  Justice Sotomayor could have decided on the stay request herself, but she decided to go to the full Court on the matter so that all of the Justices could have a say.

Why would she do this?  First of all, the Utah situation is relatively unprecedented, and presents new questions for the justices to grapple with that Sotomayor may have wished to decided with her colleagues rather than on her own.  But the most important reason that she likely referred the stay to the full court is the simplest: it was almost certain to get to them one way or another.  If Justice Sotomayor had denied the stay, the state of Utah could have refiled the request with any other justice, according to the Supreme Court’s rules.  For example, Utah could have gone to Justice Scalia in the hopes that he felt differently about the stay than Justice Sotomayor.

In theory, the state could keep doing this until five justices had individually denied the request for an emergency stay.  And even if any justice did grant the stay, the party opposing a stay (in this case the couples) could go to the full court to have them vacate that stay!  In order to avoid such a convoluted and drawn out process, justices who receive a petition that has been rejected by another justice typically refer the matter to the full court out of custom.  Justice Sotomayor probably wanted to avoid the possibility of drawing out this issue and longer than necessary; an initial decision from the full court on the stay issue is final, and settles the matter conclusively.

Unfortunately, in today’s order, none of the Justices explained their decision.  Also, the order makes no explanation of which judges (or, indeed, how many) voted on which side.  In all likelihood, the Supreme Court probably issued the stay because it wanted to return to the status quo of no marriage equality in Utah (the status quo before litigation was initiated, that is) while the courts make their determination on the merits of the state’s laws.  Of course, this is pure speculation.

At the risk of going into a little more speculation, though, advocates of marriage equality will no doubt be disappointed today, but they don’t have long to wait before the case continues in the Tenth Circuit, which has issued an expedited briefing schedule and will likely issue a decision on the merits in the first half of the year.  Like the Supreme Court did today, the Tenth Circuit gave no explanation for its decision not to stay the district court order allowing same-sex couples to wed, and unlike today’s decision, the circuit court’s ruling is certainly a sign that Utah has a steep road ahead in keeping couples from marrying in the long run. 

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  • 1. palerobber  |  January 6, 2014 at 9:44 am

    do we know yet which 10th circuit judges are on the panel to hear this appeal? also, if we prevail in the 10th circuit then Utah is certainly going straight to SCOTUS rather than en blanc, right? (time is not on their side)

  • 2. Mike in Baltimore  |  January 6, 2014 at 11:07 am

    As has been posted on EoT prior to now, the panel will not be announced until a week prior to the arguments. The date for arguments must first be declared by the Court (so far, no date for arguments has been declared), then the panel can be announced a week prior to the arguments date.

  • 3. Brent W.  |  January 6, 2014 at 11:55 am

    I've posted this before, but haven't gotten an answer. How are the panels in federal appellate courts determined? Can there be any….shall I say….shenanigans? I'm just wondering HOW it is determined, and WHO does the determining? Is it by lot? Drawing names out of an envelope by the clerk? HOW? 😀

  • 4. mtnbill  |  January 6, 2014 at 12:15 pm

    As I remember, the panels are drawn by random selection from those eligible. There will be a 3 member panel.

  • 5. David  |  January 6, 2014 at 9:55 am

    One thought: the Supreme Court has actively intervened by issuing a stay seems to me to not only assure that they will take the appeal from the 10th Circuit (regardless of the outcome), and it seems to signal that they actually want this case. Other previous speculation was that the Supreme Court didn't want to revisit this issue so quickly after DOMA. I'm not sure that is the case now.

  • 6. Bruno71  |  January 6, 2014 at 10:12 am

    I disagree. The intervention was purely for procedural purposes. Since there was no dissent issued, I think they were very careful not to tip their hand regarding the overall question on the merits, including if they want to address it at all.

  • 7. Dr. Z  |  January 6, 2014 at 10:54 am

    I wouldn't read that into their granting the stay – in fact it could mean exactly the opposite, that they will be LESS likely to grant cert, IF they issued the stay to slow things down and give the circuit courts around the country an opportunity to consider the issues before SCOTUS jumps in and makes a final determination. They may well have concluded, as was discussed here, that denying to issue a stay would have been taken as an unmistakable signal around the federal judiciary, and SCOTUS may deemed the time was not yet right to send that message. It would have boxed SCOTUS in when they finally do take this issue on. Hense, the stay.

  • 8. StraightDave  |  January 6, 2014 at 11:44 am

    That's the way I read it, too. Despite the disappointment, and the apparent divergence from their own guidelines, this was the best way for SCOTUS to avoid a premature tip and give the Circuits a free hand in making their own decisions. It buys SCOTUS 17 more months before it has to take a stand. Although, if they deny cert on this one (probably not until Oct-Nov), that will be an even bigger tip.

  • 9. Mike in Baltimore  |  January 6, 2014 at 8:00 pm

    Your opinion is very close to the opinion of the Washington Post's Bob Barnes, author of 'The Fix'. In today's online edition, he wrote an article, titled:
    "SCOTUS playing wait-and-see on gay marriage"

    Full article at:

    BTW – the word hence is written with a 'c', not 's'.

  • 10. Dr. Z  |  January 6, 2014 at 8:34 pm

    I turned off the spell checker on my Android because it became quite obnoxious after the most recent OS release.

  • 11. Jim Kelly-Evans  |  January 6, 2014 at 10:19 am

    The stay is pending the outcome of the 10th circuit appeal, which judges there have already indicated will favor marriage equality.(they denied the stay based in part on their belief that the state would NOT prevail on the merits.) Then we will see if the Supreme Court will even hear the further appeal (grant cert)…and I bet they may not, which will mean marriage equality in Utah, one more state, while the battle continues to play out in other states.

  • 12. Bruno71  |  January 6, 2014 at 10:26 am

    It'll be interesting to see how it plays out at the 10th. Hopefully the panel of 2 was correct in assessing the merits of the case and what the ruling would be.

  • 13. Bruno71  |  January 6, 2014 at 11:14 am

    I want to apologize for accidentally downvoting your post. I meant to upvote it, but my phone can be a little wonky.

  • 14. sfbob  |  January 6, 2014 at 4:43 pm

    I've done that in the past (including only yesterday) and I don't even have my phone as an excuse. Every time something changes on a page, things can shift a bit and sometimes all it takes is a shaky hand to click the wrong button.

  • 15. Mike in Baltimore  |  January 6, 2014 at 11:19 am

    I think when the 10th rules, the ruling will extend to all states in the 10th Circuit, speeding things up in Colorado, and making the conservative politicians in OK, KS and WY extremely disgruntled, at least.

    As to SCOTUS, remember the stay extends ONLY to when the 10th rules, and not beyond. Either the losing party (presumably the state of Utah) pleas for an extension of this stay from the 10th while the appeal goes forward, or SCOTUS will have to issue a new one. It will be interesting to see how any future stay (if granted) is worded. Will the courts have learned from the Prop H8 case to word it so it 'disappears' when a decision is handed down?

  • 16. Dr. Z  |  January 6, 2014 at 7:00 pm

    Assuming we win. I think we need to entertain the possibility we could have an unlucky draw at the 10th Circuit and they would rule against us using some lame argument like Baker v Nelson, which the SCOTUS would not grant cert because they are waiting for a circuit split. Grossly unjust, of course, but I think we need to at least acknowledge that it could be longer than we would like before we win nationwide equality. It has taken many years to get from Stonewall to this point. That very closeness makes us impatient, and to be sure time is on our side – but we should not take the timing for gramted.

  • 17. exNoCali  |  January 6, 2014 at 9:43 pm

    If we lose with the panel, our side can ask for en banc reconsideration, no? As I see it there are 5 current Dem-appointed judges and 5 Rep-appointed judges… one of whom has already ruled in our favor on the stay issue. That makes me optimistic.

  • 18. Dr. Z  |  January 7, 2014 at 3:47 am

    Yes, either side could ask for an en banc reconsideration but as you point out, the 10th is pretty evenly divided. Neither side would seem to have much to gain by requesting en banc unless they wanted to stall for some reason. It's also possible that if we won at the 10th then Utah could ask for en banc if they thought the votes weren't there for them at SCOTUS.

  • 19. Bruno71  |  January 7, 2014 at 12:01 pm

    It would make sense that whichever side lost would try their luck en banc, given that there's a very real possibility that SCOTUS will deny cert regardless of the outcome at the 10th.

  • 20. Jack  |  January 6, 2014 at 10:29 am

    Sooner or later, SCOTUS will have to take one of these cases — whether Utah, Ohio or one of the others in varying stages of litigation. And unlike last spring, they will need to face the central questions head on, unlike using the dodge on standing as they did in the Prop 8 case.

  • 21. José R. Merentes  |  January 6, 2014 at 1:38 pm

    In Brazil and Colombia despite the fact that marriage has not been aproved, We can getting married. In Brazil all clerks and authorities are bound by this. In Colombia you may get a judge to marry you. It' s funny.

  • 22. Steven  |  January 6, 2014 at 4:33 pm

    If the 10th circuit confirms the lower court's decision they will rule it narrowly for Utah only not whole 10th Circuit..

  • 23. StraightDave  |  January 6, 2014 at 5:55 pm

    How do you suppose they would/could do that? Is there something unique in the Utah situation that doesn't apply to the rest of the states? The court can't just say, "well we're only doing this for UT". There has to be some expression of a general principle of law behind their reasoning. And then the chips just fall where they fall. If KS has an identical law, then it's toast.

  • 24. Fluffyskunk  |  January 6, 2014 at 8:24 pm

    They can always just pull some BS out of their collective posteriors like the 9th circuit did in Perry v. Brown. The Supremes won't buy it, but they're under no obligation to grant cert when the state inevitably appeals. If they do they will probably pull another Hollingsworth and just vacate the 10th, leaving marriage equality in place only in Utah and nowhere else in the 10th Circuit, no doubt a win-win outcome from their point of view.

  • 25. Bruno71  |  January 7, 2014 at 12:06 pm

    The standing "off-ramp" isn't available here, nor is Utah's case as unique as California's to provide the "BS" rationale they'd need to specify their ruling. I'm not totally incredulous that SCOTUS could pull something out of their derrieres, but I think it's more likely this case is resolved straightforwardly on the merits in the 10th, with a denial of cert by SCOTUS.

  • 26. Rick O.  |  January 6, 2014 at 8:31 pm

    I am a pessimist and expect any opportunity for more judges to parse anew signals trouble. Denver is a cowtown more than you know – DO NOT count on the 10th. My read on the Supremes is they have signaled they do NOT want to overturn states' bans, and would appreciate a reversal so they can deny cert, maintain some dignity, and still be invited to the right cocktail parties in DC.

  • 27. Zack12  |  January 6, 2014 at 9:19 pm

    The four liberals on the court don't care about that.
    As for Kennedy,if you saw the backlash he got from the DOMA ruling and refusing Prop 8,it's safe to say he doesn't care either.

  • 28. StraightDave  |  January 7, 2014 at 12:13 am

    Considering the source of most of the backlash, I suspect Kennedy could comfortably laugh it off as garden-variety dim bulbs/religi-nuts/wackos or the conservative attention whores. Wouldn't faze him at all.

  • 29. Bruno71  |  January 7, 2014 at 12:09 pm

    Judges are pretty oblivious to that stuff. They have to have a thick skin.

    As for Denver being a cowtown, I'd say it's still not a bad place compared to many others for the LGBT community, especially post-Romer. There's no absolute way of predicting how a justice will vote on an equality ruling, we just have to guess, then wait and see.

  • 30. Zack12  |  January 6, 2014 at 10:46 pm

    I will say this,on a day where we're upset about the Utah ruling my one friend got a piece of very good news.
    His husband who is from Iran got his green card approved today. My friends can now be together and not have this cloud hanging over them.

  • 31. USA, Utah: After Supreme &hellip  |  January 7, 2014 at 6:49 am

    […] Combs at Equality on Trial analyzes the […]

  • 32. Karah  |  April 10, 2014 at 1:42 am

    I was seiulrsoy at DefCon 5 until I saw this post.

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