Utah Seeks Stay On Same-Sex Marriage Ruling From SCOTUS


Nearly two weeks after Judge Richard Shelby declared Utah’s law banning same-sex marriage unconstitutional, and more than a week after requests for a stay were denied by both Judge Shelby and the 10th Circuit, the State of Utah has finally filed a request for a stay with the Supreme Court:

Utah on Tuesday asked the Supreme Court to stay a decision by a federal judge that found the state’s ban on same-sex marriages unconstitutional and to stop the unions that have been occurring since the ruling.

The state’s request for a delay was turned down by U.S. District Judge Robert J. Shelby following his Dec. 20 decision, and the U.S. Court of Appeals for the 1oth Circuit in Denver three times turned down the state’s request.

Shelby’s decision that Utah’s state constitutional amendment banning same-sex marriage, approved by voters in 2004, was in violation of the federal guarantee of equal protection, has caused a record-breaking number of marriages in the state.

Each one, the state said in its petition, “is an affront not only to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels,” but also to the Supreme Court.

Lyle Denniston comments:

The state’s argument is based upon the premise that gay and lesbian couples are not seeking to share in a constitutional right that already exists and is open to other couples — the right to marry — but rather are attempting to create an entirely new right without a constitutional amendment or a definitive, final ruling in the courts.

Judge Shelby has not conceded that premise, actually concluding that the right to marry is and long has been a fundamental right, and that excluding same-sex couples violates their right to legal equality and to make their own choices about their personal lives.

The case goes to Justice Sonia Sotomayor, who may either rule on the application herself, or refer to the full Court for consideration. In either case, I wouldn’t expect a ruling until Thursday at the earliest, and likely not until Friday or beyond.

Here’s the Application for a stay:

Herbert v. Kitchen Application for Stay by Doug Mataconis

FILED UNDER: Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.


  1. stonetools says:

    Predict that Sotomayor just denies the request for stay. Soon there will be thousands of “facts on the ground” facing the USSC once the case gets appealed on them on the merits. Heterosexuals in Utah, take warning! Your marriages are about to fall apart thanks to a dangerous surge of homosexual marriages! Why the noxious effect may even drift into neighboring states…

  2. Gustopher says:

    The request for a stay is 101 pages. Fred Phelps can say the same thing in three little words.

    Clearly, Fred Phelps would make a terrible lawyer.

  3. rudderpedals says:

    It probably takes at least 101 pages to wrench the bad faith out of arguments alleging irreparable harm and the state’s likelihood of success on the merits.

  4. David in KC says:

    For the first time ever, I am actually going to hire someone to do our taxes this year. Because we were married in Connecticut, we can file as married with the feds, because I live in MO, even though the state does not recognize the marriage, we can file however we file with the feds, but because I work in KS, I can’t file that way there. I really don’t have the time nor the patience to do my taxes multiple ways because a state I don’t live in can’t give full faith and credit to a marriage performed in another state.

    And I am still waiting for someone to articulate an an argument against same sex marriage that isn’t based on religion or boils down to “eww, icky.” If someone wants to protect “marriage” come up with a way to reduce bad marriages.

  5. JWH says:

    @David in KC:

    David in KC:

    If you are allowed to marry, then the relative simplicity of your tax forms (and the tax forms of others similarly situated to you) could put a lot of accountants out of work. How can you be so selfish?

  6. OzarkHillbilly says:

    @David in KC: How bad is it in Kansas? Even Missourians are more realistic.

  7. KansasMom says:

    Fred Phelps is a lawyer. So are most of his kids.