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January 06, 2014 12:46 PM A Predictable Halt To Same-Sex Marriage in Utah

By Ed Kilgore

You may have heard or read by now that the U.S. Supreme Court put a “stay” on a district court judge’s decision striking down Utah’s same-sex marriage ban. As SCOTUSblog’s Lyle Denniston notes, this was a collective action by the Court, not by an individual Justice; no dissents were published. And it was entirely predictable: the Supremes were never likely to let an individual district court judge proclaim a federal constitutional right to same-sex marriage, striking down constitutional and statutory bans in 33 states.

Now the decision invalidating the Utah law will go to the Tenth Circuit Court of Appeals. As Denniston observes:

With the Justices’ order in the case, it now appears almost certain that the question of state power to bar same-sex marriages will not be before the Justices during the current Term. A case on that issue would have to be granted this month to be reviewed before the Court is expected to finish this Term in late June.

It’s not clear which way the Supremes would go if and when the subject does arrive in Washington. The deciding vote in the Windsor decision striking down the Defense of Marriage Act, cast by Justice Kennedy, relied heavily on the traditional regulation of marriage by the states. That’s a long way from the establishment of a federal constitutional right to marriage equality.

While predictable, the action is certainly bad and tragic news for the couples in Utah that took advantage of the lower-court decision, and are now in a legal limbo.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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