After a federal district judge in Utah struck down the state’s ban on same-sex marriage and refused to stay his ruling, the state asked the
This shouldn’t come as a surprise. U.S. District Judge Robert J. Shelby’s decision was a plausible extrapolation of the reasoning in last June’s Supreme Court decision striking down the federal
Scalia warned: "The real rationale of today's opinion ... is that DOMA is motivated by 'bare ... desire to harm' couples in 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."
Easy perhaps, but not necessarily inevitable.
The majority didn’t actually connect the dots in the way Scalia did. And in a case decided the same day, the justices declined to confront the core issue by ruling that supporters of California’s
Given that fact, it's not surprising that the court responded positively to Utah's request. The state argued that Shelby's decision should be stayed "to minimize the enormous disruption to the state and its citizens of potentially having to 'unwind' thousands of same-sex marriages."
That unwinding would be a problem, of course, only if Shelby's ruling were overturned on appeal. And that is still a possibility, however much supporters of same-sex marriage may wish otherwise. It may be that Kennedy, who has authored several pro-gay-rights decisions, will eventually decide that Scalia's reading of his DOMA opinion was the correct one. But it's not a slam-dunk.
And what about the hundreds of same-sex couples who were married between Shelby's ruling and Monday's stay? Utah Atty. Gen. Sean Reyes said he doesn't know and that the newlyweds are in "legal limbo." Presumably those marriages won't be "unwound" while the state's appeal proceeds, but it's not clear.