The latest action is the first time the Supreme Court has gotten involved in a same-sex marriage case since its decisions in United States v. Windsor and Hollingsworth v. Perry last June. While the Court sidestepped the issue of state same-sex marriage bans last Term, Section 3 of the federal Defense of Marriage Act (DOMA) was declared unconstitutional in a 5-4 vote. It was largely assumed that the Windsor decision would lead the Court to refuse to issue a stay in the case, since same-sex marriages have been going on for two weeks.
The Utah case, Kitchen v. Herbert, is currently on appeal to the Tenth Circuit Court of Appeals, and briefing is on a fast-track. The opening brief is due on January 27, and all briefs in the case will be filed by February 25, 2014. The date for oral arguments in the case has not yet been scheduled, but the Tenth Circuit's website lists March 17-21 as the next argument session after all the briefs are filed.
State officials sought emergency intervention from the Court after a flurry of developments that began with a federal district court judge's decision holding that Utah's same-sex marriage ban is unconstitutional, based in part on the Windsor opinion itself; the Utah decision came down on December 20. The state immediately filed its notice of appeal to the Tenth Circuit Court of Appeals, and simultaneously formally asked the district court to halt its decision allowing same-sex couples to immediately marry in Utah. The state had failed to pre-emptively ask the judge to stay any eventual ruling that would strike down the marriage ban, even though the request had been standard in these challenges.
Given the delay between the time the initial decision came down and the state's request to stay the district court order, some, and eventually all, counties in Utah began issuing marriage licenses to same-sex couples. According to some reports, records were shattered, with counties issuing over a thousand marriage licenses by December 26.
The state also filed an emergency request with the Tenth Circuit to put a hold on marriages until the district court could hold a hearing on the stay request, since federal court rules require the district court to grant or deny a stay before an appeals court can decide to grant a permanent stay.
The next day, December 21, Judge Shelby, the district court judge who ruled in favor of same-sex couples in Utah, announced that a hearing would be held the following day on the state's request for a stay. Then, the Tenth Circuit declined to issue an emergency stay, instead deciding to wait on the district court to issue a ruling on the stay request. The district court
declined to halt same-sex marriages pending the appeal of the case on the merits, and that was followed up by a Tenth Circuit ruling which also declined to stay the order.
The state hired outside counsel to write a request to the Supreme Court for an emergency stay (the request was handled by attorney Monte Neil Stewart). An application like this goes first to the Circuit Justice for whatever Circuit Court the request is filed in. In this case, Utah is within the Tenth Circuit, and the Circuit Justice is Justice Sotomayor. The plaintiffs were allowed until last Friday, January 3, to respond to the request. The same-sex couples asked the Court not to stay the ruling, based on the lack of irreparable harm to the state and the fact that the circumstances in this case aren't unusual enough to warrant the Supreme Court's intervention.
The state's reply brief, filed this morning, argues that Windsor doesn't provide a reason to deny a stay, because according to the state's reading, the Windsor opinion was based on federalism principles. The state suggests that the Court would eventually review the Tenth Circuit's decision, and a majority would vote to uphold Utah's same-sex marriage ban. Those factors, they write, should lead the Court to issue a stay pending completion of the appeals process.
The eventual final ruling on the merits by the Tenth Circuit Court of Appeals may not be the last word: The losing party can petition the Supreme Court to review the Tenth Circuit's decision. It's anyone's guess whether the Court would want to take up another same-sex marriage case so soon after deciding Perry, the Prop 8 case, on the narrow issue of Article III standing, and opting to issue a ruling on the merits only on the Windsor case. The Court could simply deny review, ending the challenge at the appeals court level. If the Tenth Circuit's ruling comes down fairly quickly after the case is argued, the Court would decide whether to hear it during the Term that begins in October of this year.