The U.S. Supreme Court halted the issuance of same-sex marriage certificates in Utah on Monday, reversing decisions by the federal judge who opened the marriage floodgate Dec. 20, and the Denver-based appeals court that refused to stay the initial decision.
Justice Sonia Sotomayor, who handles emergency stay requests for Utah, referred the appeal to the full court, which made the decision to stay U.S. District Court Judge Robert Shelby's decision pending appeal.
It's unclear if the 1,000-or-so married same-sex couples in Utah will have any rights curtailed as the 10th U.S. Circuit Court of Appeals hears Utah's appeal of Shelby's ruling.
A spokesman for the Utah attorney general's office did not immediately respond to a request for comment.
A two-judge panel of the 10th Circuit refused to issue a stay Dec. 24, ruling the state hadn't demonstrated it was likely to win on appeal and that the state was unlikely to suffer irreparable harm as a result of continued marriages by gay couples.
At the time, it didn't appear certain Sotomayor and the Supreme Court would overturn the appeals court and issue a stay.
University of Utah law professor Cliff Rosky told The Salt Lake Tribune the state would have to prove the appeals court "clearly and demonstrably" erred.
"It's basically asking, 'Was the 10th Circuit's decision reasonable?'" Rosky told the Tribune. "Could a reasonable argument be made for making the decision the 10th Circuit made? It doesn't matter if the Supreme Court agrees with the ruling, what matters if it was reasonable. If it was, it stands."
James Magleby, one of the attorneys representing the three same-sex plaintiffs who sued to overturn Utah's gay marriage ban, described the stay as "obviously disappointing" for couples wanting to get married.
"[But] this is just a temporary order, and, it is not unusual for the court to stay a decision declaring a state law unconstitutional pending appeal," Magleby said in a released statement. "Importantly, however, this temporary stay has no bearing on who will win on appeal. We look forward to defending Judge Shelby's decision in the Tenth Circuit."
Magleby added, "[w]e were confident when we filed the case in 2013, we were confident when we presented the arguments to the District Court, and we remain equally – if not more – confident about our defense of marriage equality before the Tenth Circuit."
Despite its socially conservative reputation, most counties in the only Mormon-majority state easily transitioned to granting same-sex marriage licenses. The mayor of Salt Lake City presided over many ceremonies and at least one small county sought officiants on Twitter.
Shelby made his initial ruling allowing marriages on a Friday four days before Christmas. The Obama-appointed judge decided the ban violated the 14th Amendment equal protection and due process rights of Americans.
Shelby also cited conservative Supreme Court Justice Antonin Scalia's dissent in U.S. v. Windsor, in which the court struck down the Defense of Marriage Act's ban on federal recognition of state-issued same-sex marriages.
"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in his June 2013 dissent. "The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law," Shelby wrote.
The Supreme Court's Windsor ruling did not address the section of DOMA that allows states to refuse recognition of same-sex marriages performed in other states.
Shelby did not immediately stay his decision, unlike now-retired U.S. District Court Judge Vaughn Walker – the San Francisco-based George H.W. Bush appointee who struck down California's voter-approved gay marriage ban in 2010. The Supreme Court did not ultimately rule on the merits of that case, and allowed Walker's decision to stand after finding gay marriage foes lacked standing.