As Utah prepares to appeal the 10th U.S. Circuit Court of Appeals’ decision invalidating Utah’s Amendment 3, there are important aspects of Wednesday’s ruling worth considering before the case reaches the Supreme Court. There are significant concerns with courts deciding matters best left to the representative branches of government.
Contrary to the strategic narrative that the same-sex marriage debate is over, reasonable people continue to disagree. A recent national poll by Politico found only 48 percent in favor of gay marriage, with 52 percent opposed.
As with the general public’s view of same-sex marriage, Wednesday’s legal opinion was also sharply divided. So too was the earlier Ninth Circuit ruling on California’s Proposition 8 and the Supreme Court’s 5-4 ruling last year on the Defense of Marriage Act. Many believe that a Supreme Court decision on Utah’s Amendment 3 would result in another 5-4 ruling one way or the other.
And while many also look to Justice Anthony Kennedy to provide the deciding vote on the high court, he appears uncomfortable with that prospect. “Any society that relies on nine unelected judges to resolve the most serious issues of the day,” he told an audience last October, “is not a functioning democracy.”
Same-sex marriage advocates insist that civil rights should never be left to the ballot box. But the sharp disagreements among appellate judges over gay marriage makes these cases more analogous to the divisive rulings over sexual liberties, such as Roe v. Wade, than to the landmark — and unanimous — civil rights rulings in Brown v. Board of Education and Loving v. Virginia.
Judicial activism can be described as writing subjective policy preferences into the law rather than applying the current law impartially. For hot-button social topics, judges are as likely as anyone to have strong opinions on the issues. And avoiding results-based jurisprudence is no doubt a difficult task for even the most impartial of judges. While allegations of activism can be overused, there’s a concerning pattern that’s worth considering: same-sex marriage decisions share the same result with different reasoning.
In striking down California’s Proposition 8, the Ninth Circuit had relied on a finding of “animus” or hatred. In contrast, the trial court in Utah found no animus, and ruled instead that Amendment 3 had no “rational basis.” But Judge Jerome Holmes (one of the two appellate judges that affirmed the trial court) was clearly troubled by that finding, observing at oral argument that Utah met the rational basis test. Instead, the 10th Circuit decided the case on alternative grounds. Reaching the same result with different reasoning might suggest that these rulings are made with the end in mind. Some issues, by nature, invite subjective policy preferences that are best resolved through representative policymaking.
That Wednesday’s ruling did not rely on animus is also significant for another reason. Whereas previous rulings expressly stigmatized supporters of traditional marriage as motivated by malice, hatred and bigotry, the 10th Circuit majority said it would “actively discourage” characterizing Amendment 3’s supporters as “intolerant,” and said that its conclusion “in no way impugns the integrity or good-faith beliefs of those who supported Amendment 3.”
That’s significant in light of the bullying of Brendan Eich, former Mozilla CEO, who was pressured to resign for his support of Proposition 8. In April, more than 50 scholars and leaders, all self-described same-sex marriage supporters, denounced the “deeply illiberal impulse” to “punish rather than to criticize or to persuade.” But as welcome as these recognitions are, such punishments are the bitter fruit of the politically expedient, but historically misleading, argument that opposition to same-sex marriage is morally equivalent to opposition to interracial marriage.
As a commentator observed, “It shouldn’t come as too much of a surprise when people who bought your argument then go out and apply its ruthless and unforgiving logic.” Regrettably, Wednesday’s opinion by the 10th Circuit continues to make inaccurate comparisons to interracial marriage, fueling the misconceptions that give rise to persecution, even while expressly disavowing the results.
Wednesday’s divided opinion underscores that same-sex marriage is a complex, sensitive, and difficult subject about which reasonable people can have good-faith disagreements. As such, it continues to be an issue best resolved through deliberative, representative branches of government. If democratic institutions have failed to act timely, then more, not less, public debate is needed.
Michael Erickson is an attorney. Jenet Erickson is family science researcher. They live in Salt Lake City.