The U.S. Supreme Court on Monday temporarily halted gay marriages in Utah, but the constitutional question of whether a state can ban those unions is racing to the high court faster than many of the justices might have expected just six months ago.
Last June, the justices in Hollingsworth v. Perry, a challenge to California’s Proposition 8, a constitutional amendment banning same-sex marriages, did not reach the major question: whether a state, consistent with equal protection guarantees, may define marriage as the union between a man and woman. Instead, a 5-4 majority held that the proponents of Prop. 8 lacked standing to defend it.
And, in a second case, U.S. v. Windsor, a different 5-4 majority struck down Section 3 of the federal Defense of Marriage Act, which defined marriage as between a man and a woman for purposes of more than 1,000 federal laws. The majority said it was unconstitutional as applied to legally married same-sex couples.
Not surprisingly, lawyers for Utah and three gay couples in Herbert v. Kitchen found language in the two recent Supreme Court decisions to support or to oppose the state’s emergency request for a stay of U.S. District Judge Robert Shelby’s Dec. 20 ruling striking down the state’s gay marriage bans. And the judge himself had relied on reasoning of Windsor‘s majority and dissenting opinions to support his own decision.
The Supreme Court, acting without comment, issued a stay pending a final decision on the state’s appeal to the U.S. Court of Appeals for the Tenth Circuit. Shelby had rejected a stay request on Dec. 23, and a two-judge appellate panel agreed with him on Dec. 24.
“Utahns deserve to have this issue resolved through a fair and complete judicial process,” Gov. Gary Herbert said. “I firmly believe that this is a states-rights issue and I will work to defend the position of the people of Utah and our State Constitution.”
In the span of just two short weeks, hundreds of gay couples reportedly have married in Utah, but the status of those marriages—if the appellate court reverses Shelby—is uncertain.
“The huge response that we have seen since the federal court’s ruling shows how important the freedom to marry is in the state of Utah,” said John Mejia, legal director of the ACLU of Utah, an amicus party in the lower court. “Though future marriages are on hold for now, the state should recognize as valid those marriages that have already been issued, and those couples should continue to be treated as married by the federal government.”
Utah Attorney General Sean Reyes noted that the legal status of the more that 900 same-sex marriages performed in the state are now in “legal limbo.” His office, he said, is examining the legal implications of those marriages.
The Utah case centers on two state laws and a state constitutional amendment (passed in 2004) that bar same-sex couples from entering civil marriage or any other legal union, and prohibit recognition of marriages or other legal unions entered into by same-sex couples in other states.
Three Utah couples—Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge brought the challenge. They either wished to be married in Utah or were legally married elsewhere and wanted their home state to recognize their marriage. They have been represented by Magleby & Greenwood, a litigation and intellectual property boutique in Salt Lake City.
“This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over,” James Magleby, counsel to the plaintiffs, said in written a statement. “We were confident when we filed the case in 2013; we were confident when we presented the arguments to the District Court, and we remain equally—if not more—confident about our defense of marriage equality before the 10th Circuit.”
The three couples argued that the state prohibition infringes their rights to due process and equal protection under the 14th Amendment to the U.S. Constitution. Utah countered, among other arguments, that just as the federal government cannot disregard a state’s decision to recognize same-sex marriages, it cannot intrude on a state’s decision not to recognize those marriages.
Shelby held that the state had no rational basis for denying gay couples the right to marry. The Supreme Court in Lawrence v. Texas removed moral disapproval as a ground for distinguishing the rights of gays and lesbians from those of heterosexuals, he said. He rejected the state’s distinction that gay couples are not able to reproduce with each other and added:
“But, of course, neither can thousands of opposite-sex couples in Utah. As a result, there is no legitimate reason that the rights of gay and lesbian individuals are any different from those of other people. All citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family. The court therefore finds that the Plaintiffs have a fundamental right to marry that protects their choice of a same-sex partner.”
Shelby’s ruling made Utah the 18th state, along with the District of Columbia, to recognize same-sex marriages.
In arguing for an emergency stay from the Supreme Court, Utah, represented by Monte Stewart of Stewart Taylor & Morris in Boise, said there was a “strong likelihood” that four justices would grant review if the Tenth Circuit affirmed Shelby and that five justices would vote to reverse that affirmance.
There were four votes to grant review in Hollingsworth, the number necessary for review, Stewart noted, and but for the jurisdictional problem the court would have reached the merits. There were four dissenting justices in Windsor, he added, and “not one justice expressed a contrary view” about a state’s historical role in regulating marriage.
And if the Tenth Circuit affirmed Shelby, he continued, it would create a clear conflict with the Eighth Circuit’s 2006 ruling in Citizens for Equal Protection v. Bruning, upholding Nebraska’s gay marriage ban. That decision was never appealed to the U.S. Supreme Court.
Stewart, who has been named a special assistant attorney general by Utah for the case, was an amicus counsel in the Eighth Circuit case. He is the founding president of the Marriage Law Foundation.
Whether the Utah case will be the one in which the Supreme Court confronts the constitutional question of gay marriage, it is too soon to tell. The Tenth Circuit has put the state’s appeal on an expedited briefing schedule, with the state’s opening brief to be filed by Jan. 27; a reply by the gay couples by Feb. 18; and any reply by the state by Feb. 25.
Contact Marcia Coyle at firstname.lastname@example.org.