The Utah Attorney General’s request for a stay pending an appeal has been denied by everyone, and now goes before the United States Supreme Court. A stay is granted when the appellant has the possibility of winning the appeal. It would stop the marriages happening in Utah now pending the results of the appeal.

Higher appeals courts do not have to take every case. If they did, they’d never get anything done. Usually they only take a case when at least some of the justices want to overturn what the lower courts did. Even then, if they can’t convince the other justices, the lower court decision will remain. If the Supreme Court refuses to grant the stay, that’s a pretty good sign that they are not interested in taking this case, which means that marriages will continue in Utah.

The Utah court based much of its decision on the Supreme Court’s decision to strike down California’s anti-gay marriage act. Prohibiting gay marriage “humiliates tens of thousands of children now being raised by same-sex couples,” the Supremes wrote, which gave the federal court ammunition it needed to strike down Utah’s laws.

Any law that discriminates must be strictly scrutinized and the state has to show that the discrimination is necessary to achieve an important end. Here, there is none. Opponents of gay marriage argue that marriage is for procreation (thus nullifying my 31-year childless marriage and prohibiting the sterile and elderly from ever getting married). They say gay marriage harms the children (when there is no evidence whatsoever to support it). They argue that it’s what the citizens of their state want (which didn’t work when they fought to save laws discriminating against minorities and women, either). And then they argue religious reasons (which have no place in our laws).

There is no legal justification to deny gay marriage, and courts are starting to recognize this.

The important thing about the Utah decision is that it may embolden other courts, both state and federal. If this can be done in Utah, the state with the largest percentage of people still against gay marriage, then why not Pennsylvania, where a majority favor it?

It’s also discouraged the fanatics who are fighting against it. Even some of the most conservative observers are now admitting that this is inevitable so it’s better to wage fights elsewhere.

What we really need is one of the conservative Supreme Court members to retire or, in the case of Thomas, be impeached. (But that’s a different topic for a different day.) If Obama could appoint one more justice, great changes could take place and many of the worst decisions made by the Supremes in the past twenty years could be reversed. (Well, except for Gore v. Bush.)