The Supreme Court just handed down an order staying a lower court’s decision recognizing that the Constitution forbids marriage discrimination. Though Utah requested that Justice Sotomayor issue the stay on her own, the Court’s very brief order indicates that she referred the decision to the full Court. No justice indicated a dissent, although that does not necessarily mean that all nine justices would have granted the stay.
Though today’s order will come as a disappointment to the many same-sex couples whose marriages are now in limbo until this case is finally resolved, it is not a particularly surprising order. Several justices with largely pro-gay records have indicated that they prefer an incremental approach to the marriage equality question, and leaving the lower court’s decision in effect would have been inconsistent with that approach. Nor does the Court’s order indicate much about how the justices view the merits of this case. Recall that the United States Court of Appeals for the Ninth Circuit stayed a lower court order suspending California’s Proposition 8, only to declare that anti-gay proposition unconstitutional.