he Supreme Court on Monday granted Utah's request to temporarily halt same-sex marriages in the state until a federal appeals court can rule on the issue.
A federal judge in December ruled that Utah's ban on same-sex marriage was unconstitutional, making Utah the eighteenth state in the nation where gay couples could legally wed. But the state appealed the decision and urged higher courts to block the initial ruling while the case was heard on appeal.
Though the Supreme Court's ruling on Monday temporarily froze gay marriages in Utah, it did not indicate how the court would rule on the actual question of a legal right to same-sex marriage. Had the justices not issued the stay, it would have "left at least the impression that the Court was comfortable allowing same-sex marriages to go forward in the thirty-three states where they are still not permitted by state law," wrote SCOTUSblog's Lyle Denniston. And in that sense, the ruling did no more than indicate 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."
In other words, the high court is letting lower courts pick their way through the issue before it ultimately has to address the question itself — something that could very well happen sooner rather than later.
Last year, the Supreme Court issued two landmark rulings in favor of same-sex marriage, but sidestepped the larger question about whether bans on marriage equality were inherently unconstitutional. There have been dozens of challenges to state-level bans on same-sex marriage since those opinions, any of which could make their way up through the legal system. And whomever comes out on the wrong side of Utah's appeals court ruling will almost certainly appeal that decision up to the high court, too.
If lower courts offer conflicting or murky opinions on the matter, the Supreme Court will have an impetus to step in and clear things up a bit. The justices wouldn't necessarily have to take up such a case, but there are probably enough members of the court who would want to take a crack at the issue that it will indeed come up for further review.
As University of California, Irvine, law professor Richard Hasen noted in December, it takes at least four justices to agree to hear a case for it to come before the full court. The three most conservative members, he argued, "won't be able to resist" hearing another state-level case on gay marriage. Any of the more liberal justices, thinking they have the numbers on their side, could then also agree to hear the case.
It is fairly likely that the Court grants a stay [in Utah] to keep the status quo as things progress in the 10th Circuit. That will buy the Court some time. But not that much. I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits. There are just too many questions, and so much litigation, for the Court to avoid the merits for too long. [ElectionLawBlog]
More legal challenges to same-sex marriage bans will soon make their way up to the Supreme Court. And if the justices decide to hear such a case, they'll likely have to offer, if not a definitive ruling on the constitutionality of gay marriage bans, at least a broader ruling than they did this past year.
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