Between this and her temporary injunction in the Little Sisters of the Poor case against ObamaCare, there are online jokes aplenty about how Justice Sonia Sotomayor is some kind of stealth conservative who somehow slipped past Barack Obama. But that’s silly, because such things only happen to Republican presidents. Also, while the appeal in this case was filed with Sotomayor, it was the entire Court that issued the order to block same-sex marriage in Utah on Monday morning. Fox News reports:
The court issued a brief order Monday blocking any new same-sex unions in the state. The ruling comes after a Dec. 20 ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage violates gay and lesbian couples’ constitutional rights.
The decision, in one of the country’s most conservative states, touched off a flurry of court filings as some jurisdictions started issuing marriage licenses.
More than 900 gay and lesbian couples have married since the Dec. 20 ruling.
The high court order will remain in effect until the Denver-based 10th U.S. Circuit Court of Appeals decides whether to uphold Shelby’s ruling.
It sounds like we might be in for a few downs of federalism football:
In another filing on Monday, the state of Utah argued that Shelby’s “unlawful injunction” interferes with the state’s enforcement of its own laws.
The state’s request to the Supreme Court was filed with Justice Sonia Sotomayor, who handles emergency appeals from Utah and the five other states in the 10th Circuit. Sotomayor turned the matter over to the entire court.
The action now shifts to Denver, where the appeals court will consider arguments from the state against same-sex marriage as well as from the three gay and lesbian couples who challenged the ban in support of Shelby’s ruling. The appeals court had twice rebuffed the state’s plea to stop gay weddings pending appeal.
Ryan Anderson of the Heritage Foundation welcomed what he saw as a rebuke to activist judges:
???One district judge should not be able to misread the Court???s recent decisions and force any state to act contrary to the meaning and purpose of marriage,??? Anderson adds. ???At the very least, the issue is too important to force a state to change its laws without federal appeals court input. Ultimately, the U.S. Constitution does not require redefining marriage.???
???Whatever one thinks about marriage, the courts shouldn???t be redefining it,??? says Anderson. ???America should make marriage policy through the democratic process rather than allowing judges to dictate it through decisions that have no grounding in our Constitution.???
It won’t be much of a rebuke if the upshot of this Supreme Court action is merely to remind activist judges to cool their jets until all the appeals have been concluded, much less if the whole Utah controversy is obviated by a Supreme Court decision that imposes same-sex marriage nationwide. It seems a bit early to make any big predictions for either states’ rights, judicial activism, or the future of marriage based on today’s action.
ABC News recalls how Judge Shelby’s decision built from last summer’s Supreme Court case on the Defense of Marriage Act:
The Supreme Court’s unsigned order did not indicate that anyone dissented from the decision not to allow any more same-sex marriages in Utah, at least for now. Nor did the order reveal anything about the justices’ views on same-sex marriage.
Shelby was the first federal judge to overturn a state marriage ban since the high court issued two decisions on same-sex marriage in June.
The justices at that time struck down a provision of the federal Defense of Marriage Act that prevented legally married gay and lesbian couples from receiving a range of tax, health, pension and other federal benefits.
Shelby cited the decision in his ruling that the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.
“In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens,” Shelby wrote.