(In that case, the Court dismissed a challenge to a lower-court ruling overturning Prop. Some of that has come from experts in legal circles who believe that the Supreme Court may not be ready to take on the question of a constitutional right to same-sex marriage-which the Justices astutely managed to avoid addressing head on in last summer’s twin rulings on DOMA and Proposition 8, California’s gay-marriage ban. Still, Judge Shelby and the Tenth Circuit have come under some criticism for not delaying implementation of the order. The image of statewide elected officials hurrying to court for an emergency ruling to stop acts of love and commitment, as if they were somehow threats to public order, speaks volumes.
That so many gay and lesbian Utah citizens rushed to get married also rather dramatically demonstrated that what this case (and others like it) is really about is allowing citizens to express love and commitment to each other in an open and free society. That they did not do so seems to have handicapped them: since the weddings have already begun, the state can’t really claim to be seeking to preserve the status quo by stopping them. They could, for example, have asked the judge in advance to delay implementation of any possible ruling pending appeal. Windsor, which struck down the federal Defense of Marriage Act on the grounds that gay Americans were entitled to equal “dignity” and that the Constitution protected their “moral and sexual choices.” It’s hard to know if Utah officials had any warning signs, but if they did, they surely should have been better prepared. Shelby based it on the Supreme Court’s ruling, this summer, in United States v. First of all, the decision was not widely anticipated. The Utah situation has been novel in several respects. That filing-for which the state indicated that it sought the help of outside counsel-is now expected as soon as this week.
It would first go to Justice Sonia Sotomayor, the Justice responsible for the Tenth Circuit, and could go to the full Supreme Court at her discretion.
Then, on Christmas Eve, state officials indicated that they would seek an emergency stay from the Supreme Court. The governor and attorney general have made several unsuccessful attempts to halt the marriage ceremonies by asking a panel of the Tenth Circuit Court of Appeals and Judge Shelby himself to stay or delay the ruling both denied the request. Since then, about a thousand same-sex couples have been married in the deeply red state, setting a record for the number of marriage licenses issued in Salt Lake County on a single day. Shelby ruled that Utah’s Amendment 3, which prohibited same-sex marriage, was unconstitutional.
It’s now been eleven days since the district-court judge Robert J.