Analysis: Utah’s options on same-sex marriage
State officials in Utah plan to ask the Supreme Court, as early as Monday, to stop same-sex marriages across the state, but a question that arises as lawyers prepare the papers is whether they will stop with only that request. The option is open, although it may be a long shot, to ask the Justices to move immediately into the ultimate constitutional issue of states’ power to ban gay and lesbian marriages — as thirty-three states now do.
If Utah’s own legal staff, along with outside counsel they say they have recruited to help out, conclude that the state’s opposition to such marriages is probably a lost cause in lower courts, they could attempt to persuade the Supreme Court that now is the time to deal with the core issue, once and for all, without waiting for the ongoing campaign to promote marriage equality to unfold further in the lower state and federal courts.
There are arguments, of course, against such a bold stroke at this stage — not the least of which is that it could fail. Another counter-argument is that the Court does not often take up a broad constitutional question before waiting to see what further results on it may emerge in lower courts.
And, further, everyone involved with the same-sex marriage issue has to realize that the Justices could have reached the fundamental question of marriage equality last Term, and deliberately chose not to take it on. In striking down a part of the federal Defense of Marriage Act, the Court made clear it was not deciding that issue, and even stopped short of laying down the analytical formula it would use when it does address that question.
At the same time, the Court could have moved ahead to reach that issue, in a test case on California’s “Proposition 8” — a flat ban on same-sex marriage in the nation’s largest state. Instead, that case went off on a procedural point — the proponents of “Proposition 8” had no right to appeal, the Court said. While the practical effect of that was to allow same-sex marriages to resume in California, that was not what the Court had declared in a formal legal sense.
One lesson that could be drawn from last Term’s decisions was that, indeed, the Court is not yet ready to strike down same-sex marriage bans that are still in effect in a majority of the states, and that the Justices may actually want to encourage some further “percolation” on that issue in lower courts.
But, if the experience of the last few weeks is any guide to what may unfold in lower courts in coming weeks and months, there are good reasons to believe that more of the existing state bans are likely to be nullified, perhaps rather quickly. Two federal judges and a state supreme court in New Mexico have interpreted last Term’s decision in the Defense of Marriage Act as a constitutional signal that such bans are in deep trouble and may not long survive.
If the Court were to pay any attention to the cultural atmosphere in the states where those opinions have emerged, it would find that a ban on same-sex marriage probably has the most popular support in Utah, among all of the states retaining such a prohibition.
That is a state that is dominated, in religious and even in some political sense, by the Mormon Church. It is a matter of faith among devout Mormons that God has ordained that marriage is to be only for one man and one woman, and that it is the religious duty of its followers to work to preserve that tradition. Indeed, the Mormon Church exerted major influence in California when that state’s voters approved the “Proposition 8” ban.
Utah officials, in turning to the Supreme Court this week, will be bringing that tradition and that current social atmosphere as background to their request for some immediate relief from the decision earlier this month by a federal judge in Salt Lake City, Robert J. Shelby, striking down Utah’s voter-approved amendment to the state constitution so as to ban same-sex marriages.
So, what are the options that Utah’s lawyers have before them, as they prepare to turn to the Justices — from the least ambitious move to the most?
They could ask Justice Sonia Sotomayor, who handles emergency legal requests from the geographic region that includes Utah, to put Judge Shelby’s decision on hold until after the U.S. Court of Appeals for the Tenth Circuit has a chance to rule on the state’s appeal already pending in that appeals court. The Tenth Circuit has already promised that it would expedite its review. Justice Sotomayor would have the authority to decide that issue on her own, or share it with her eight colleagues.
Next, Utah could ask the Court to treat its application for a “stay” — that is, a request to delay Judge Shelby’s ruling — as a formal request for the Court to grant review now of state power to ban same-sex marriage.
Next, the filing could ask the Court to grant review without waiting for the Tenth Circuit to decide the case. That would be about as bold as turning the stay request into a petition for review, but it would be a more energetic use of the Supreme Court’s review power.
Finally, they could argue that Judge Shelby’s ruling was so far off the mark constitutionally — especially for the people of Utah — that the Justices should strike it down summarily, without full briefing and oral argument.
At this stage, the only one of those options that does not seem likely to happen is the last one: the Court probably would not want to deal with such a basic and culturally important issue without a full-scale review, with all of the usual legal trappings of a major precedent-setting case.
The Court, of course, can be sure that the ultimate issue of marriage equality is going to continue to come to them, from one state or another, and from one lower court or another. Perhaps even the inevitability of this ongoing string of test cases could have an influence on what step the Court might be prepared to take when it examines what Utah will seek.