I think I get a slightly unhealthy amount of pleasure reading through the rulings made by various courts. While I can appreciate the gains made on through legislative and democratic action, there's something nice about having the full background and rational carefully laid out for you that a court can provide. The opinion given by the Utah District Court is rather lengthy as far as such opinions have tended to come, addressing a great much of the history and issues that we debate on this forum. Naturally, it's especially pleasing when you find that your own words could almost have been substituted into the opinion, if not for lack of sufficient amounts of legal jargon One thing to note, the court seems to support a heightened level of scrutiny in this case, but asserts that even under the lowest level, rational basis, it would reach the came conclusion. Anyway, here's a link to the opinion if anyone cares to read, and I'd like to take out some of my favorite quotes https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?213cv0217-90 This one seems especially relevant given some of the more common objections we hear on this forum: Here's an answer to another common objection, but thankfully one that is becoming less common: Addressing the specific quest The court also makes use of one of my favorite Supreme Court cases, which demonstrates that the court has recognized more than one purpose to marriage, thus arguing ad nausium about one particular purpose is an exercise of futility. Prison inmates have the protection right to marry, despite being unable to procreate. The court acknowledges that some of those inmates may consumate the marriage after release, but not before outlining a number of other reasons for offering the protection, none of which, and no combination of which, they deemed to be necessary or sufficient to establish the protection. Is it a "New" or "existing" right? And touching on how changes in context, new facts and understandings can change the interpretation given in precedent: On to the rational basis test:
Indeed It will be interesting to see what happens in the coming days, weeks and months. Last I heard, marriage ceremonies are still currently going on. The state has issued a request for an emergency stay to halt the ceremonies until the appeal can be decided on, but there is a good change the stay will not be granted. Stay's are usually only granted when there is risk of irreparable harm. And on that note, when SCOTUS punted the Prop 8 case from California, SCOTUS indicated that it does not believe that the party appealing he case could demonstrate that they were being harmed by the legalization of same-sex marriage, and thus has no standing. If it continues to be understood that there is no specific harm that can be demonstrated, and the appellant court instead looks more to the language of Windsor that acknowledges harm done instead to same-sex couples, it could be months before there's even a chance to halt the ceremonies after with a successful appeal.... assuming a successful appeal in the first place, that is. From New Jersey, New Mexico, and now to Utah, the Windsor case is weighing pretty heavily on recent court decisions. The prior case from Minnesota, Baker v. Nelson, has been all but abandoned as having established any sort of precedent, with more recent cases having established that "doctrinal developments indicate otherwise". It's going to become increasingly difficult to block SSM, with Windsor demonstrating harm done to families lead by same-sex couples, and the dismissal of Prop 8 for lack of standing demonstrating that no harm to the opponents of SSM could be demonstrated. Both of those recent cases are weighing in pretty heavily in one direction. Just look at the recent case in New Jersey as another example, which the Governor didn't even bother to appeal to the NJ Supreme Court when they refused to issue a stay on a lower court decision, for basically the exact same reasons. The dominos are falling, the only court that can stop it will be SCOTUS, and they're going to have to decide on it soon.
I confess that I do not know what to make of all this. That the appeals court has refused to issue a stay of the lower court's ruling pending appeal is pleasantly surprising, yet it causes me some concern as well. I just can't see the Supreme Court getting this far out ahead of the states by issuing a ruling that nullifies 30 state constitutional amendments. This and the many other cases that are coming so fast on the heels of the DOMA ruling and Prop 8 non-ruling are not unexpected, but I would prefer the bans be repealed through the same mechanism by which they were enacted, with judicial reinforcement coming after a majority of states have acted to pass recognition of same-sex marriages.
It's hard for me to say what I think of this as well, logistically at least. A part of me thinks that when SCOTUS wrote that majority opinion for Windsor, they had to have had an idea what they were doing. They had to have known the powerful effect that the language they chose to use in the opinion would have, which has rippled through the court systems. From New Jersey, to Ohio, New Mexico and now Utah... Windsor, and to some extent the dismissal of Perry for lack of standing, have obviously weighed heavily on each of these cases that have followed. They didn't have to use the language they chose to use, but they did. They could have decided Windsor purely on a State's Rights basis, but instead they went on to invoke Equal Protection, Due Process and wrapped it up in a host of emotionally charged language condemning the animus, damage and humiliation that they believed was at the core of the law. Perhaps Scalia was just speaking in hyperbole, but even he was confident in his dissent that the language and rational used in majority opinion could only be used to undermine state bans. It's almost just as hard for me to imagine that SCOTUS would set all these cases up just to strike them down, unless you think that those who authored the majority underestimated the strength of their own words and how it would be interpreted. That all said, perhaps it's possible that SCOTUS, when the times comes, can rule more narrowly so as to not overturn more than half of the country's state laws.. Utah comes with its own unique set of facts and questions around the motivation and justifications for Amendment 3. In particular, their constitutional ban outlaws not only marriage, but any form of recognition like a Civil Union, calling into question the legitimate intent of the amendment. A state can argue that creating the institution of marriage for a man and woman has a purpose, even if it is a little to narrow or wide for that purpose, but there's no reason to specifically outlaw any form of recognition for a given category of people, where the only intent seems to do them harm. A similar case was decided in 1996, http://en.wikipedia.org/wiki/Romer_v._Evans - in that case, a constitutional amendment in Colorado was struck down upon failing a rational basis test. The amendment made it illegal for any city, county, or any other level of government in Colorado to enforce anti-discrimination laws for homosexuals and bisexuals. The court argues that there is no purpose for specifically making it harder for one group of people above any other to seek protection and equal rights. I'm not exactly sure what a ruling like that would do in this case. In Colorado, when that amendment was struck down, it didn't suddenly mean that SCOTUS required all of Colorado and the USA to create anti-discrimination laws... rather, it just meant that states could not make it explicitly harder to do so for one category of people. So would this just strike down the amendments that make it harder, thus leaving it open for state legislatures and other mechanisms to act? Or would it in effect nullify all of the laws that created the restriction as well, resulting in a full legalization? Further, would this effect only states that had clearly demonstrated animus, while leaving other state laws in tact? Donno. Either which way, it's probably the case from Nevada that will make it to SCOTUS first, not the Utah case.
That's nice, and would add legitimacy, but it doesn't address the concerns of older to middle aged LGB people who may never be able to marry if they have to wait for GOP-controlled legislatures to pass legislation to put the question to voters in their state again. I don't think Kennedy will side with the Scalia side of the court when this finally comes around.
All good points. A further question - is it possible they might limit the effect of their ruling to just the one state that the suit concerns? I doubt it, as I don't think they'll want to hear separate cases for each state. But I have trouble imagining an all or nothing ruling being handed down, either. So it may indeed be that the middle ground is to strike provisions that prevent any recognition of same-sex relationships without mandating that they must provide some form of recognition. Or if the right case comes up, requiring states to recognize the same-sex marriages of other states without requiring those states to marry same-sex couples themselves. Interesting times.
Which could include me. While I view the denial of same-sex marriage recognition to be an injustice, I also recognize that the issues are ultimately bigger than just same-sex marriages. The balance of power between the federal and state governments, and of voters raises serious questions that I think will have to be answered before the issue of same-sex marriages can be satisfactorily resolved. I think it will depend on the facts of the case before them and how Kennedy weighs the injustice against these larger questions about where the proper balance of powers lies.
I suppose it is possible that SCOTUS could say that each case has specific legal circumstances depending on the history and context of each state's laws, but I imagine any decision made will ultimately effect more than one state where circumstances are essentially similar. I'm not entirely familiar with these logistical processes of the court, but with so many cases coming down the pipeline, they could possibly combine several of the cases rule on them at once, cutting down on the trouble of going through each one by one. It might also be possible that once one or more individual cases have been heard, the future ones can potentially be ruled on quickly without hearings based on circumstance, although that seems unlikely to me. That last possibility seems quite likely to me as well. Windsor was ruled based on the fact that the power to define marriage virtually always rested with the states (among other reasons). Similarly, the power to have a marriage recognized across state borders has virtually always rested with the state that issued the marriage license, with other states granting full faith and credit. The federal government failed to prove to the court that they had a rational basis for this one exception to their otherwise universal recognition of marriages performed by the states. The states are in the same boat, virtually always recognized marriages performed across state borders. Making it explicitly harder for just one group to be recognized across boarders is thus arguably inconsistent with the logic used in Romer and Windsor. So if a all out ruling in favor of same-sex marriage isn't in the cards, I'd say there is a very good chance that either one, or both of these other possibilities could be ruled on instead.
Interesting perspectives. My view is that they already "kicked the can down the road" so to speak when they refused to take on Prop 8. To continue doing that would be unprofessional for the highest court in the land IMO.
