By Mike Dorf
Adam Liptak reports in the NY Times that Utah will indeed ask the Supreme Court to stay the district court judgment invalidating the state's same-sex marriage ban. The article, which quotes me and my most recent blog post on the topic, focuses on the incredibly rapid pace of change with respect to SSM since the Supreme Court's decisions in June in Windsor and Perry. Those changes suggest that if the Supreme Court could manage to avoid deciding the issue for just another couple of years, the case will be a mopping-up operation like Loving v. Virginia rather than a controversial decision on an issue that deeply divides the country, like Brown v. Board or Roe v. Wade.
In my earlier post I explained why I think that a stay is probably warranted, even though I think the district court decision was correct. Here I'll add one other consideration that is not, strictly speaking, a legal consideration. Ideally, the Court will either grant or deny a stay in a way that ensures that the case remains in the 10th Circuit for at least another couple of months. Then, if the Supreme Court grants cert, the case won't be heard until next Term, which would delay a SCOTUS ruling until around June 2015. Given the incredibly rapid pace of change, it's quite possible that by then SSM will be lawful in a clear majority of states, so that a SCOTUS ruling requiring SSM throughout the country could be greeted with a yawn.
It's not at all clear to me that the Court's decision whether to grant or deny a stay in the Utah case will affect the timing of the 10th Circuit litigation. Indeed, I think just about anything the Court does--short of the unlikely and extraordinary step of granting certiorari immediately--will keep the merits out of the Court until next Term.
That said, if the Court denies a stay, that will be a pretty strong signal that five Justices are prepared to find a right to SSM; by contrast, if the Court grants a stay, that will not necessarily signal much of anything, especially if one of the Windsor majority Justices (I nominate Justice Sotomayor, as the Circuit Justice) writes a concurrence explaining the difference between a stay to preserve the status quo and a decision on the merits.