Justice Sonia Sotomayor of the Supreme Court is set to decide whether same-sex marriages in Utah, which have been conducted since a federal trial judge overturned on December 20 a state ban on such marriages, can continue while the case is being appealed, or whether they must cease for the time being.
After both Judge Robert Shelby and the Tenth Circuit Court of Appeals denied its application for an emergency stay, Utah took its request up to the Circuit Justice assigned to the Tenth Circuit, Justice Sonia Sotomayor, on December 31. Justice Sotomayor asked the plaintiffs to submit its response opposing the stay by noon, January 3. Their brief can be found here (courtesy of the Legal Times).
From here, Justice Sotomayor can choose to decide the stay herself, or she can refer the issue to the full Supreme Court. I’ve created a flowchart (click to enlarge) to help explain how a non-capital stay1 moves through the federal courts. The magenta box on the left lists out what a party must show in order to obtain a stay.
(This flowchart was created using information from Supreme Court Rule 22 on “Applications to Individual Justices” and the Supreme Court Public Information Office’s “Reporter’s Guide to Applications.” The latter includes a chart showing which Justices are assigned to which Circuits.)
In terms of where in the process we are right now, Utah’s stay application is at the teal box labeled “Circuit Justice (Justice Sotomayor).”
There has been a lot of speculation in the last few days over whether Justice Sotomayor will keep the stay application for herself or bring in the rest of her colleagues, with many predicting that she will refer it to the full Court. As the chart shows, that seems to be the quickest, most efficient way to dispose of the application–once the full Court has voted on the stay, its decision is final.
Individual Circuit Justice rulings, meanwhile, are theoretically subject to “appeal.” If the Circuit Justice denies the stay, the party petitioning for a stay can resubmit the request to another individual Justice of its choosing (Supreme Court Rule 22.4, however, points out that this tactic is “not favored,” and the Justice to whom the request is resubmitted will usually then refer it to the full court, out of deference to the Circuit Justice and to defuse attempts at “justice shopping”). If the Circuit Justice individually grants the application, the party opposing the stay can then ask the full court to vacate the stay. Now, in practice, the Circuit Justices are accorded a great deal of deference in their individual decisions–Sotomayor, after all, did just individually grant a stay on a separate case two days ago–but the possibility that their rulings might end up being reviewed by the full Court anyway may incentivize them to “share.”
UPDATE: The Supreme Court granted Utah’s request for a stay this morning, halting same-sex marriages in the state until the Tenth Circuit has decided the case on appeal. The one-paragraph order, which can be found here, shows that Justice Sotomayor did in fact refer the stay request to the full court. The Supreme Court did not touch the merits of the case in its grant of the stay, providing no explanation of its decision or analysis of the two parties’ arguments. As Utah’s Fox 13 News reporter Ben Winslow notes, over 900 same-sex marriages have been conducted in the state since Judge Shelby’s initial ruling on December 20. Winslow reports that the Tenth Circuit expects to hear oral argument in the case this March.
- As opposed to capital stays, where a convicted individual has received the death penalty–these play out differently because of the nature of such cases [↩]