Unless you have been spelunking for the past few months, you know that there is something pretty major going on in Utah right now.
A federal district court invalidated the state's ban on gay marriage and refused to stay the decision until the Tenth Circuit could hear the case. The Circuit Court also denied a stay, leading to an estimated 1,000 gay marriages being performed in the state before the U.S. Supreme Court stepped in and stayed the lower court's decision pending the Tenth Circuit's expedited appeal.
It's a circus, one caused in large part by the Court's punting of the issue in Perry. And now, thanks to the Court's intervention, Utah Gov. Gary Herbert announced that the state would not recognize the same-sex marriages performed during the brief period of legality, at least until the court battle has been resolved, reports The New York Times.
Which begs the question: did the Supreme Court screw up?
Unsettled Question of Law
Regardless of your views on the issue of marriage equality, we can all agree on one thing: this is an unresolved question of law.
Can states ban same-sex marriage? Lower courts have seized upon the language of Windsor to declare that equal protection requires states to recognize these marriages, but their treatment of Windsor's reasoning isn't beyond debatable. At some point, the higher circuit courts and the Supreme Court will have to step in and clarify the issue once and for all.
It may seem to be a bit soon, especially since the court just decided Perry a few months ago, but with litigation clogging the dockets nationwide, the Court may not be able to wait for long.
You Should've Stayed
While the issue is working its way through the courts, a stay should have been issued. Announcing a major shift in law, that could very well be overturned on appeal, and not entering a stay, was reckless.
At the time, Gov. Gary Herbert told The Salt Lake Tribune that a stay was warranted, as "the uncertainty of what is happening is creating a lot of chaos. That's my concern. This uncertainty is creating a lot of problems for us with the conflicting laws in the state of Utah, what the clerks should be doing, what the tax laws are going to be. There's a lot of issues there, so a stay would be appropriate until we finally have resolution."
Of course, part of the confusion is his doing. His announcement today that the state would not recognize the 1,000 or so marriages that were entered into legally during the pre-stay period just made a confusing situation worse.
The lower courts' refusal of a stay, and Gov. Herbert's announcement means there is an entire class of people who are married, but aren't legally married, at least for now. But they do get to keep their new names on their driver's licenses. (Not kidding.)
Don't Blame SCOTUS (Entirely)
We can't point the finger at the Supreme Court for issuing a stay. It's an unsettled question of law that balances equal protection issues against respect for a state law passed via the initiative process. Direct democracy versus equality. A stay ensures that there aren't even more semi-legal marriages that risk invalidation after a year or two of legal wrangling.
Of course, had the Court reached the issue when it reared its head in Perry, there wouldn't be any legal wrangling left.
- Ginsburg, Kennedy, and Gay Marriage: Court's Leanings are Clear (FindLaw's U.S. Supreme Court Blog)
- Perry and Windsor: Threads of Standing, Constitutional Quandaries (FindLaw's U.S. Supreme Court Blog)
- Snippets: Sotomayor Honored, Utah's Appeal, and NSA Metadata (FindLaw's U.S. Supreme Court Blog)