Utah Order Does Deep Damage

The joyful celebration of weddings in Utah screeched to a halt this morning, as the U.S. Supreme Court issued a stay, pending resolution of the state government’s appeal. The font of pictures and footage of lines of couples braving the cold, with their families and their children seeking marriage licenses and celebrating their longstanding love and newfound security, has run dry till further notice—and it means that some families won’t ever know what it means to be married.

The stay is a cruel blow to those who desire to marry now. (The marriages of those who wed prior to today, pursuant to a perfectly valid court order, are unaffected by the pause in ceremonies pending the case’s outcome.)

Until Lambda Legal’s victory in New Jersey mere weeks ago, stays pending the ultimate ruling in marriage equality cases were routine. They were routine, but we argued that they weren’t right—and we finally won the point. We had always known we were right in terms of our mission to deliver respect and protection to LGBT people. But we were also rock-solid on the law.

A stay, legally, requires some forecasting of the likelihood of success, and then calls for balancing the hardships suffered by the parties. We had a leg up in New Jersey, because Lambda Legal’s earlier marriage case in the state had registered a clear win for equal rights under the state’s constitution. And after the U.S. Supreme Court struck down the part of the so-called Defense of Marriage Act that had barred same-sex couples from receiving federal marital benefits, the stark inequities were mounting day by day: married couples could take medical leave to care for each other and their children, they had the right to be placed together rather than separated in nursing facilities under Medicare, and they could extend marriage-linked immigration benefits to spouses and spouses’ relatives—but couples barred from marriage could not. And that’s just a minute sampling.

Against the burgeoning array of protections extended to married people, the New Jersey government asserted its investment in traditional definitions that exclude same-sex couples. The Court dug in and analyzed the arguments. Finally, courts were seriously grappling with the impact of delays along the way to our ultimate wins. The New Jersey high court denied a stay—unanimously.

And in Utah, the trial court and federal appeals court refused to stay marriages, as well.

Today that all changed. The stay in Utah is painful. It does deep damage. It means some people will never marry. That’s right. They will never, ever have the chance to protect those they love most – a partner, their children, even their parents. The New Jersey Supreme Court on October 18, 2013, acknowledged our searing point when it flat-out turned down the government’s opposition to marriages. The Justices wrote:

the ongoing injury that plaintiffs face today cannot be repaired with an award of money damages at a later time…. Plaintiffs highlight a stark example to demonstrate the point: if a civil-union partner passes away while a stay is in place, his or her surviving partner and any children will forever be denied federal marital protections. The balance of hardships does not support the motion for a stay.

Illustrating the point with more faces and individual lives, in courts in Illinois we have won expedited marriages for all Illinois same-sex couples who, because of a life-threatening illness, cannot wait until next summer to get married when the state’s new marriage equality law goes into effect.

Yes, the Utah case, which appears to be on what in legal slang we call a “rocket docket,” is moving very quickly. But today we face the tragic fact that for some, it won’t move quickly enough.