Andrew Koppleman says “an underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General’s office in litigating the case.”

“Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal. That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.”

“In Utah, however, the state inexplicably neglected to request a stay before the ruling issued.”

“In June, when the Supreme Court stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage, many thought the court had bought itself several years before it had to confront the question again,” the New York Times reports.

“But the issue will soon return to the court, with officials in Utah saying that within the next few days they will ask the justices to block a trial judge’s decision last week that allows same-sex couples to marry there.”

Rick Hasen: “It is fairly likely that the Court grants a stay to keep the status quo as things progress in the 10th Circuit. That will buy the Court some time. But not that much. I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits. There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.”