Same-Sex Marriage Heads Back to Supreme Court

The U.S. Court of Appeals for the Tenth Circuit’s refusal to stay a district court decision invalidating Utah’s ban on same-sex marriage is sending the issue back to the Supreme Court less than six months after last summer’s the Windsor and Perry decisions.  Adam Liptak reports:

The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days.

The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, the state’s ban on same-sex marriage. In that case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, stayed both the trial judge’s ruling and its own as appeals went ahead.

The ultimate argument for a stay would be to preserve the status quo while the underlying legal issues are resolved.  Were Judge Shelby’s decision to be overturned, courts would face the choice of invalidating those same-sex marriages conducted in the interim, or rewarding those who raced to the courthouse in the wake of the initial decision.  Yet, as Rick Hasen notes, that will not buy the Court all that much time.  It may be too late for a decision on the merits of this issue this term, but the Supreme Court may have little choice to decide whether there is a constitutional right to same-sex marriage as soon as 2015.

UPDATE: According to Andrew Koppelman, the Utah AG’s “goof” is the reason there was no stay in the trial court.