After federal district court Judge Robert Shelby's dramatic Dec. 20 decision overturning Utah's gay marriage prohibition, same-sex marriages remain legal in the state heading into Christmas. Yesterday, Shelby refused to stay his decision pending appeal, and attention shifted to the 10th Circuit Court of Appeals, which will now weigh the state’s request for a stay.
Gov. Gary Herbert had urged Shelby to issue a temporary stay on his decision, arguing in a statement over the weekend that the decision "created a chaotic situation" in the state.
But some, including University of Utah law professor Clifford Rosky, are skeptical the stay will be granted, even at the 10th Circuit. A stay typically is granted only if there is a high probability of success for the appeal or irreversible damage to the state in the interval, he explained.
"There are only 3,000 same-sex couples in Utah," Rosky said, "and 1,000 of those have already gotten married this week. If a few hundred more get married now, what difference will it make?"
Rosky, who also is chair of the board for Equality Utah, an LGBT equality group, also noted the state's argument that, if it succeeds on appeal, the marriages contracted during the interval will be nullified. Rosky, however, said he believes they would stand, because they were legally contracted at the time they were made.
During a one-month period in 2004, San Francisco Mayor Gavin Newsom ordered clerks to issue marriage licenses to same-sex couples. The ensuing 3,995 same-sex marriages were later invalidated by the California Supreme Court when it determined Newsom lacked authority to authorize those licenses. The cases are not entirely parallel since the Utah case involves a federal judge rather than a local elected official, and Newsom's actions were overturned because he lacked the legal authority at the time. Whether the Utah marriages will stand if Shelby's decision is overturned is still an open question.
Observers on both sides are looking past the near-term decisions to the big picture, including likely Supreme Court outcomes. Utah’s case before the 10th Circuit Court of Appeals now joins a similar case from Nevada currently before the 9th Circuit, and on Tuesday a federal judge in Ohio raised the ante further, holding that the Buckeye state was obliged to recognize as married on its death certificate a couple married in Maryland shortly before one partner died.
One thing seems clear: With three different Circuit Courts of Appeal now poised to decide essentially the same issue around the same time, the Supreme Court cannot be far behind.
Stigma and animus
If past is prologue, the groundwork for Judge Shelby’s decision was laid by five members of the Supreme Court in June 2013 in Windsor v. U.S., which struck down the parts of the federal Defense of Marriage Act that defined marriage for federal purposes.
On the surface, Supreme Court Justice Anthony Kennedy’s decision in Windsor sought to reassure its audience that it was deferring to the states by barring the federal government out of the definition of marriage. But Kennedy’s decision did not stop with defending state authority to define marriage. In fact, as Justice Antonin Scalia argued in dissent, it may have undermined state authority.
Kennedy's decision ranged widely, critiquing the motivations that drove Congress and President Clinton to pass and sign the law. The law’s creators, Kennedy wrote, evinced a “bare desire to harm,” sought “to disparage and to injure,” aimed to “demean,” “impose ... a stigma,” deny people “equal dignity” and “humiliat(e)” the children of gay couples.
None of this was really surprising given Kennedy’s track record. Kennedy was the author of two key gay rights precedents: Romer vs. Evans in 1996 and Lawrence v. Texas in 2003 — both of which struck down state laws the court held illegitimately discriminated against gays. In both cases, Kennedy relied heavily on the “animus” or “stigma” imposed by the legislature.
Kennedy’s Windsor decision last June strongly echoed those two earlier decisions, leaving readers confused about whether the court was striking down the federal DOMA to allow states to define marriage on their own or was laying the a foundation to strike down state laws and impose a uniform definition of marriage under Supreme Court auspices.
Justice Antonin Scalia was pretty sure it was the latter. He said so in a blistering dissent, criticizing the majority for incoherence and predicting the court would soon strike down all state laws banning gay marriage.
“I promise you this,” Scalia wrote after outlining Kennedy’s harsh judgment against the motives of DOMA’s framers, “The only thing that will 'confine' the court’s holding is its sense of what it can get away with.”
Scalia doubted that the “court which finds it so horrific that Congress irrationally and hatefully” acted against the dignity of gay couples would look the other way when state governments were adjudged to have done the same. “As far as this court is concerned,” he wrote, “no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote.
The other shoe
It is no surprise that both federal judges in this week's gay marriage decisions cited not only Kennedy’s decision in Windsor but specifically pointed to Scalia’s dissent as proof that their interpretation of what Kennedy meant was correct.
"The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples simply because the majority of the voters don't like homosexuality,” wrote Judge Timothy Black in the Ohio decision, citing the majority in Windsor and Scalia’s dissent. “Under the Constitution of the United States, the answer is no.”
“Scalia is described as an incorrigible truth teller,” said Rosky. “When sodomy laws were struck down in Texas, he said marriage was next, and when the federal marriage laws were struck down last summer, he said state laws were next.” Rosky said that passages from Scalia’s dissent “barely had to be changed at all” for Shelby’s purposes in the Utah case.
Rosky understands the confusion surrounding the Windsor decision, given its apparent emphasis on state authority to define marriage. But every time Kennedy’s decision nodded in the direction of state control, he said, “they also said that every state law governing marriage must comply with federal constitutional guarantees.”
In Rosky’s view, Shelby’s decision is neither unexpected nor the result of a freelancing judicial activist. It is rather, he argues, the logical follow up from a clear invitation offered by the majority of Supreme Court justices and properly flagged in dissent by Scalia.
Scalia himself, Rosky said, were he sitting on the district court bench, would have to have agreed that the precedent of Windsor was an invitation to strike down Utah’s law.
"It makes sense to get this decided and off with the circus train,” said U.S. District Chief Judge Robert Jones before upholding Nevada’s constitutional gay marriage ban in 2012. The train is now getting crowded, with Utah and Ohio joining in.
Nevada’s case differs in that the state already had a civil union provision in place, adopted by the legislature over the governor’s veto in 2009. Nevada’s broad civil union was so far-reaching as to render the prohibition against gay marriage in the state almost meaningless, as least with regard to any legal or financial benefits.
Ohio’s case is somewhat different in that the federal judge struck more narrowly, finding that Ohio had a history of recognizing marriages performed in other states, such those involving cousins or minors. Ohio was, he argued, thus obliged to make similar allowance for same sex marriages. Moreover, the Ohio ruling seemingly applied only to death certificates.
But as Kennedy did in Windsor, Black used language that swept widely. Black found that when “a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family and intimate relations specifically protected by the Supreme Court.”
Black also argued that "once you get married lawfully in one state, another state cannot summarily take your marriage away.”
It’s hard to see how that language could be constrained to death certificates. At the very least, Black's holding seems to push toward requiring states that ban gay marriage to recognize those performed in other states. Black’s decision is thus a direct challenge to the remaining leg of the Defense of Marriage Act, which insulates states from recognizing same-sex marriages performed in other states.
“A lot depends on whether the courts of appeal take seriously the Supreme Court’s assurances that the states will be allowed to shape their own marriage laws,” said Bill Duncan, director of the Marriage Law Center for the Utah-based Sutherland Institute.
Overlooked in the focus on Scalia’s dissent, Duncan said, is another dissent, this one by Chief Justice John Roberts, which sought to lock the majority into its promise to respect state marriage definitions, forestalling what Scalia predicted and, oddly, helped bring about with his own dissent.
“However Kennedy views the legal arguments will determine the final outcome,” Duncan said. “Kennedy has always supported plaintiffs on gay rights matters, but he also has a long tradition of supporting federalism and state autonomy.”
So was Roberts or Scalia right in their reading of Kennedy’s Windsor ruling? Does Windsor protect states in defining marriage? Or does it lay the groundwork for upheaval?
Only Justice Kennedy knows for sure.
Copyright 2017, Deseret News Publishing Company