Constitution Check: Has the Supreme Court already tipped its hand on same-sex marriage?

Lyle Denniston looks at the only guidance so far from the Supreme Court about a recent slew of same-sex marriage cases – and why some assumptions about the two-sentence order may be premature.

800px-Supreme_Court_US_2010THE STATEMENTS AT ISSUE:

“This year, the United States Supreme Court has granted a stay in a case where the trial court declared a state’s marriage law unconstitutional.   See Herbert v. Kitchen…The Supreme Court grants a stay if there is a ‘fair prospect that a majority of the Court will vote to reverse the judgment below’…Thus, as a matter of law, the Supreme Court has already indicated the likelihood that the Supreme Court will ultimately affirm state marriage laws [that ban same-sex unions].
– Excerpt from a legal motion filed in the Arkansas Supreme Court on May 12, seeking a delay of a state judge’s ruling striking down the state’s ban on same-sex marriage. The state Supreme Court granted the request, while it considers an appeal.

“I believe that the Supreme Court, in Herbert v. Kitchen, has virtually instructed courts of appeals to grant stays in the circumstances before us today….The Supreme Court’s two-sentence order…provides a clear message – the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review”

– U.S. Circuit Court Judge Andrew D. Hurwitz of Phoenix, explaining in an opinion on Tuesday why he reluctantly decided that he had no choice but to agree to postpone the opportunity of same-sex couples in Idaho to begin to get married under a federal trial judge’s ruling striking down the state’s ban on such marriages.


The Supreme Court has assigned itself the task of being “supreme in the exposition of the law of the Constitution,” and it said that dominant role is “a permanent and indispensable feature of our constitutional system.” That’s the way it put it in a 1958 opinion in a major school desegregation case from Little Rock, Ark., Cooper v. Aaron.   But what happens if the Justices take an action, and don’t explain themselves fully? Since it is a court of law, and not the Delphic Oracle, people are not supposed to have to guess at what its rulings mean.

But, for months now, judges and lawyers across the nation have been trying to figure out the significance of a simple order that the Justices issued on January 6, in a Utah same-sex marriage case. And the meaning of that order has become very significant for thousands of same-sex couples, who have won a right to get married in court after court, and yet are usually not able to take advantage of that right. Similarly, judges and lawyers are kept in a state of continuing uncertainty about when clerks’ offices can open to begin issuing marriage licenses, and about what happens to same-sex marriages that do occur when a brief moment of opportunity opened for that – as it did in Utah last winter.

It will be months before the same-sex marriage issue reaches the Justices, and until that happens, no one can be sure how the constitutional issue will be decided when the court takes on the chore of resolving it.   Since its ruling last June striking own parts of the federal Defense of Marriage Act (U.S. v. Windsor), which provided what has turned out to be a clear opening for judge after judge to strike down states’ same-sex marriage bans, the court has had only one thing to say. That was its January 6, two-sentence order in Herbert v. Kitchen, which did one thing for certain: it temporarily stopped same-sex marriages in Utah (but not before 1,300 same-sex couples got married).

To set the scene for that action, one needs to know at least a little bit about a legal process that no doubt is quite unfamiliar to most Americans: the process for delaying a court ruling. When a court issues a decision, it has to be put into effect, and that usually is done by a separate court order. But if such a decision is going to be appealed by the losing party, the issue often arises whether the court will put its ruling on hold (“stay” it, in legal parlance) to allow time to appeal.

In Utah, a federal judge struck down the ban on same-sex marriages. That judge, and then a federal appeals court, refused requests by state officials to delay the ruling, and same-sex marriages began across the state. But the state went to the Supreme Court, and got a delaying order. It was clear enough, on what the court had intended to do: it postponed the judge’s ruling and said the delay would last until an appeals court had ruled on the state’s appeal.

But, in view of subsequent developments, saying that much was not enough. On both sides of the courthouse struggles over same-sex marriage, lawyers are reading into the order in Herbert v. Kitchen what they can do help their clients, and judges are straining to get some guidance from it. Whatever was in the minds of the Justices, however, is entirely unknown.

The legal standards for postponing a decision do include the issue of whether the challenger to a ruling is likely to win on an appeal. But there are other standards, too: Who is likely to be hurt, if anybody, if the ruling is not blocked? Who, if anybody, will be hurt if it is blocked? And, what is in “the public interest”?

There is no way to know which of those questions the Supreme Court sought to answer in its unexplained order of delay. One thing is clear: it certainly did not decide who will win when it actually takes on, for real, the constitutional question of same-sex marriage.   Before issuing a decision of such importance the court would go through the full process of formal review, and then decide in an opinion that (hopefully) would spell out all the reasons for the result.

Lawyers, of course, cannot be blamed for trying to wring out of an unexplained court order as much as they can to aid their clients. And judges cannot be blamed for trying to read between the lines of such an order in order to help them decide what to do in a case before them.

What may be frustrating, all around, is that the Supreme Court has no duty to explain itself, especially in issuing the kind of order that emerged in the Utah case.   And it would take time away from other, perhaps more pressing chores, to write out an opinion.   But doing so might well provide needed guidance on what the court expects to happen when it rules in that way. When it does not, it is anybody’s guess what was expected.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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