In our opinion: In marriage case, Utah needs SCOTUS to ensure justice and fair play

Published: Thursday, Oct. 8 2015 9:23 p.m. MDT

Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for "traditional marriage" a day after a federal appeals court heard arguments about the constitutionality of the law. (Rick Bowmer, Associated Press)

In America, people don’t always agree with one another, even on fundamental values or on principles of individual liberty and democratic self-government. Yet the strength of our union relies upon a sense of fair play and an equal opportunity to access the halls of justice. That equal opportunity has been denied to the state of Utah in the debate over same-sex marriage. It now needs to be rectified by the United States Supreme Court.

On Friday afternoon, a 2-1 vote by a panel of the 10th U.S. Circuit Court of Appeals in Denver ordered Utah to recognize same-sex marriages that took place during a 17-day period of legal uncertainty beginning on Dec. 20, 2013. The appeals court panel gave the state a narrow window — until next Monday, July 21 — to seek relief from the Supreme Court. And on Friday, Utah said that it would seek such relief.

As divisive issues like same-sex marriage proceed into courts, the Constitution requires that judges referee claims under an important set of constraints. Judges should rule narrowly, and be extremely reluctant to overturn democratically passed laws and state constitutions. Judges should rule only after both sides have had opportunity to present their case. Judges should stay controversial decisions until they can be reviewed by a higher court.

When a federal district court judge struck down Utah’s law and constitution governing marriage on Dec. 20, his refusal to stay his own decision raised expectations of same-sex marriage in Utah. It created a period of great uncertainty that concluded when the U.S. Supreme Court stepped into the Utah dispute on Jan. 6, granting the stay. In that act, the high court took some degree of ownership in resolving this matter here.

Last month, the 10th Circuit Court, in a 2-1 split decision in favor of same-sex marriage, attempted to carefully weigh the constitutional arguments on the substance. Dissenting Judge Paul Kelly had the better argument. But all three judges agreed that changes in the recognition of marriage should be postponed for an indefinite period of time until the high court decides whether it will take this nationally contested issue.

Given conflicting circuit court decision on whether a state may be compelled to recognize same-sex unions (8th Circuit says no; 10th Circuit says yes), we believe that the Supreme Court must weigh in and resolve the fundamental dispute.

Equally important, the Supreme Court should weigh in now, before July 21. It should preserve Utah’s ability to maintain its laws regarding marriage until its position has been given equal consideration with that of the opposing parties.

On Friday, Judge Kelly again dissented from his two colleagues. He was emphatic about procedural irregularities that, if unchecked, make a mockery of the rule of law in these United States.

“The rule contended for by [those seeking same-sex marriage] — that a federal district court may change the law regardless of appellate review and the State is stuck with the result in perpetuity — simply cannot be the law. It would not only create chaos, but also undermine due process and fairness.”

Kelly continued: “In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration.”

It’s unclear why the 10th Circuit, after the care with which it previously imposed a stay on the fundamental issue, would undo this careful approach through its decision on Friday.

It now falls to the Supreme Court to once again rectify the damage, and to allow an equal opportunity to access the halls of justice in contemplation of state marriage laws.

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