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Ravell Call, Deseret News
Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning.
Both those conclusions are inhospitable to accommodations for traditional religious believers. Even many people who have changed their minds on gay marriage view it as a difficult question of social policy. —Michael McConnell, a law professor at Stanford

The Supreme Court’s decision to halt same-sex marriages in Utah indicates the court hopes to see a slower, more orderly process, legal experts say.

The stay issued Monday was no surprise to Rick Hasen, a law professor at the University of California, Irvine, who tweeted Sunday night that the court would likely issue a stay Monday and that it might be unanimous. He was right on both counts, it appears.

Hasen said he expected the court to move to forestall chaos in Utah and the other 32 states that now ban gay marriage. “Judges watch what others judges do,” he said, “and I think the Supreme Court sent a very clear message to other lower courts that these things should be stayed until they are finally resolved.”

On hot button issues such as abortion, gun rights and now gay marriage, Hasen said, the court prefers things to “move slowly and incrementally, and if there is going to be change it should be change from the top.”

Part of the chaos centers on the 900 marriages in Utah performed during the interval before Monday’s stay and whether those will be considered valid. California offers no real precedent because the marriages there took place under California law before the voters changed the law, Hasen said. In this case, the underlying Utah law remains untouched, should the state win on appeal.

“We have no idea,” said Michael McConnell, a law professor at Stanford, on whether the marriages performed in Utah will be valid going forward. He added that the Supreme Court stay at least freezes the number of cases at 900, while it could have gone much higher. “It should have been zero,” he said.

Some close observers of the court see hope for negotiated solutions that could allow for greater comity and respect on both sides. But whether the issues are settled in the courts or the legislatures, few see an easy path to a stable compromise.

Space for politics

Is this rapid movement, lurching and stopping what Justice Anthony Kennedy and the rest of the Supreme Court had in mind when they issued their decision in Windsor v. U.S. last summer?

Antonin Scalia seemed to think so in his dissent last summer when he pictured the court's majority as disingenuous schemers sending direct signals to lower courts that they were ready to find a right to gay marriage.

Scalia based this on a series of phrases in Kennedy’s majority opinion that implied the majority of the court saw no fair-minded basis for opposing gay marriage. Any such opposition could only be driven by “animus,” or raw hostility. When Judge Robert Shelby struck down Utah’s law just before Christmas, he cited both Kennedy’s language and Scalia’s characterization of it as authority.

I’m not sure Scalia’s opinion was either accurate or helpful,” said McConnell, who is director of the Constitutional Law Center at Stanford and a former Circuit Federal Judge.

McConnell, who has served as a member of the Deseret News Editorial Advisory Board, sees Kennedy as conflicted in his own thinking — revealing his own policy preferences but genuinely hoping to put off judicial policymaking if at all possible.

"The court was signaling that it wanted to allow space for politics,” McConnell said. The court could have held gay marriage to be a fundamental right in the Windsor decision, he said, and the court also sidestepped the California Proposition 8 case, with Justices Ruth Bader Ginsburg and Stephen Breyer voting to avoid deciding it. In short, if the court had actually been prepared to throw down a gauntlet, the opportunity was there last summer.

Ginsburg and Breyer may have sidestepped the issue because they believed they would lose Kennedy, McConnell said. Or they may have also wanted to give politics time to work. McConnell favors the latter interpretation, noting Ginsburg’s now-famous comments in which she lamented that Roe v. Wade may have been premature in that it forestalled political dialog.

“The lower courts are not showing the same interest in giving politics time to work,” McConnell said. If McConnell is right, then Kennedy and perhaps others may be caught a little off guard that the lower courts have forced the issue so quickly.

Courts v. legislatures

Politics is preferable to judicial action, McConnell argues, because legislatures are more supple and better able to accommodate multifaceted, competing interests. When the courts strike down traditional marriage law, he said, they must find either that the law is irrational or malicious.

“Both those conclusions are inhospitable to accommodations for traditional religious believers,” McConnell said. “Even many people who have changed their minds on gay marriage view it as a difficult question of social policy.” But the court cannot say that, he adds, because then it would lack grounds to strike down the law.

In short, McConnell argues, legislative action is better able to blend difficult competing claims because it allows compromises on both principles and the policies that courts are poorly situated to make.

Harmless cranks

Courts deal in the rights of private parties, said Robin Wilson, a law professor at the University of Illinois, but they are terrible in navigating complex interests involving competing claims in the larger polity.

“You put same-sex marriage advocates in a room with traditional religious believers and in the end you get some exemptions,” she said.

Wilson believes that a stable accommodation can be reached between gay-marriage advocates and traditional believers, and she argues that the latter need to begin such deal-making sooner rather than later.

Where the courts have mandated gay marriage, Wilson said, no such religious liberty accommodations are offered. The alternative to legislative negotiation, in her view, is to hold out against legislative compromise and risk everything in the courts. “My point is you have a closing window and you will be road kill,” Wilson said. “It is way worse to gamble on getting no protection.”

A compromise on such terms is of dubious value to Bill Duncan, executive director of the Utah-based Marriage Law Foundation. Duncan doesn’t see a lot of difference between a hostile court decision and negotiated legislation, if either way religious dissenters are forced to accept that they are pariahs.

“The other side says we have to do that to avoid a backlash, but all it takes is a bill to remove the exemption,” Duncan said. “Meanwhile, we have to admit that we are haters but would really appreciate if we could use our facilities for our admittedly anachronistic and strange practices.”

In such a case, Duncan fears, “to be treated like a harmless crank is best you can hope for.”