Now that I’m back from Christmas break, here’s some follow-up on my previous posts about federal district judge Robert J. Shelby’s astounding refusal to stay pending appeal his decision invalidating Utah’s marriage laws:
1. Here’s where things stand procedurally: On Christmas Eve, a two-judge motions panel of the Tenth Circuit denied Utah’s emergency motion for a stay. On New Year’s Eve, Utah filed an application for a stay with Justice Sonia Sotomayor (the justice for the Tenth Circuit). Per Lyle Denniston at SCOTUSblog, Justice Sotomayor has invited plaintiffs to file a response by noon today.
I’m guessing that Justice Sotomayor will refer the motion to the entire Court for decision, but it’s also possible that she will decide it on her own. (If she were to deny it, Utah could refile with another justice, who could refer it to the entire Court). I continue to believe that the case for a stay is compelling.
2. Judge Shelby’s order denying Utah’s motion to stay (which is available as Appendix C to Utah’s pending application) strikes me as remarkable in several respects:
First, Shelby explains that his initial order “did not include a stay of its judgment as none had been requested by the State.” It may well be proper to fault Utah’s lawyers for this oversight, but it seems to me that principles of federalism ought to command that a federal judge be much more respectful of a state’s interest in its laws—especially something as fundamental as its marriage laws—than Shelby was. Shelby could, for example, have given the parties advance notice of how he would be ruling and have invited Utah to file a stay request. Or he could have temporarily stayed his own decision in order to give Utah time.
Second, Shelby slights Utah’s strong showing of irreparable harm and exaggerates the countervailing harm that a stay would impose on plaintiffs. Importing his merits discussion, Shelby asserts that Utah’s interest in preserving its marriage laws is not “sufficient to withstand rational basis scrutiny,” and he evidently weights that interest at zero. Conversely, he fails to recognize that the interest of plaintiffs in entering into a supposed marriage is weak insofar as that supposed marriage may ultimately be deemed to have been void ab initio.
Third, and seemingly most brazen, is Shelby’s basis for refusing to grant a temporary stay to enable the Tenth Circuit to decide Utah’s stay motion. According to Shelby, the purpose of a temporary stay is “to preserve the status quo” at the moment. Because of his refusal to stay his order, “the status quo is currently that same-sex couples are allowed to marry in the State of Utah.” So he concludes that a stay wouldn’t preserve that status quo. But Shelby doesn’t cite any authority for his understanding of the status quo that is to be preserved, and I would have thought it clear (though I invite correction if I’m mistaken) that it’s the status quo that existed before the court issued its judgment. (Given that the Tenth Circuit motions panel denied Utah’s stay motion, this might seem like harmless error, but it also seems indicative of Shelby’s bias.)