Late this afternoon the state of Utah petitioned the Supreme Court to stay the ruling by U.S. District Judge Robert Shelby in the marriage equality case, Kitchen v. Herbert. The Petition is addressed to Justice Sonia Sotomayor, who is assigned to hear such petitions emanating from the states in the 10th Circuit. Last week, a pair of 10th Circuit judges, sitting as a panel to hear such petitions, supported Judge Shelby’s decision to deny a stay.
The state of Utah was caught by this decision without an attorney general, the incumbent having resigned in some sort of scandal earlier in December, so “Acting” Attorney Generals were caught in the middle of a political storm when Judge Shelby’s decision was handed down on Friday, Dec. 20. Somebody slipped up in that office by not including in their summary judgement motion a request for a stay in case the court granted the plaintiff’s cross-motion. As a result, Judge Shelby didn’t grant a stay, and rebuffed an attempt by the state to get one through a simple telephone call a few hours after the decision was issued. Instead, he responded, with careful regard for due process of law, that they would have to file a petition and give the plaintiffs an opportunity to respond. After considering the papers that were filed and oral argument on Monday, December 23, Shelby denied the stay, ultimately issuing a lengthy opinion justifying his decision. Then the 10th Circuit motions panel unanimously affirmed Shelby, finding that a stay was not warranted.
The state hired an eminent Idaho litigator, Monte Stewart, and his firm, and the new Attorney General, Sean Reyes, was sworn in yesterday. So now the new team of Stewart and Reyes, a different crew from those who fell short last week, has taken the reigns, and the Petition filed with the Supreme Court is expertly put together. I’m in the midst of writing the January issue of Lesbian/Gay Law Notes, and have just composed the following about the stay petition:
“Stewart’s petition argued that the case meets the Supreme Court’s criteria for a stay. He argued that it is likely that the Supreme Court would grant review to a 10th Circuit decision affirming Shelby’s opinion, likely that the full Court would reverse the 10th Circuit, and that failure to stay the ruling would cause irreparable injury to the state. On the first point, he’s undoubtedly correct. A 10th Circuit decision affirming Shelby would probably draw at least four votes on the Court for certiorari, all that is needed for a grant. The second point is questionable, and depends heavily on trying to repurpose the operative portions of Justice Kennedy’s Windsor decision as a federalism ruling, as it was hopefully characterized in his dissent by the Chief Justice but curtly disputed in his dissent by Justice Scalia. But all Stewart has to do to win a stay is to persuade a majority of the Court that it is possible that a 10th Circuit decision would be reversed. His argument on irreparable injury is highly contentious, suggesting that Utah suffers a dignitary injury when a court orders it to let same-sex couples marry against the political will of the state, and arguing that the plaintiffs suffer no injury because they are not being deprived of an “established” constitutional right. In this, of course, he is arguing that the case is not about the right to marry, but rather about a right of “same-sex marriage.” This is the same conceptual error that the Supreme Court embraced in Bowers v. Hardwick (1986), and that the majority in Lawrence v. Texas (2003) identified as a fatal flaw in the earlier case.”
It is impossible to predict what will happen with this. Now the ball is in the plaintiffs’ counsel’s court, and one hopes they quickly come up with a persuasive response. Somebody is going to be working furiously over the New Year holiday. It is likely that this petition will be referred by Justice Sotomayor to the full Court, but probably not until later in the week.
P.S. – After writing this I learned that Justice Sotomayor has given plaintiffs’ counsel until noon Friday, January 3, to respond. So there will be no decision on the Petition until the end of the week, if then.