THE BLOG
01/08/2014 01:45 pm ET Updated Mar 10, 2014

Utah Ruling May Foreshadow Supreme Court Defeat for Gay Marriage

The Supreme Court halted gay marriages in Utah with a judicial stay. The big question is whether nearly 1,000 marriages performed over the last three weeks will be valid if the 10th Circuit ultimately sides with Utah and upholds its ban on gay marriage. Let's put it this way: The stay exists for the purpose of putting a stop to something lawful that could inflict future harm. Utah wouldn't have appealed for a stay if the marriages taking place weren't legally valid. Once the District Court judge struck down Utah's ban on gay marriage, the decision became the law of the land. The marriages that took place before the Supreme Court's stay went into effect are valid. In its appeal, Utah vows to "unwind" the marriages, if the state ultimately wins its case. Utah says in its court papers that it will seek to invalidate the marriages that were "lawfully" entered into during this time, on grounds that the law never officially changed because there was no amendment to the state's constitution. Utah says it will do everything in its power to make the marriages unlawful if it wins. It likely won't be able to unwind these marriages even if the state prevails, because the law cannot be applied retroactively.

The larger issue here, though, which most people are completely missing, is that the Utah case will likely climb its way up to the Supreme Court no matter the outcome in the 10th Circuit, and the Supreme Court's stay is a clue into how the highest court may rule on the broader question: Is it constitutional for states to ban gay marriage? Let's not forget, this is a question the Supreme Court purposely did not answer in either the Windsor case or the Proposition 8 dismissal. The Court dismissed the Proposition 8 case on grounds that it lacked a necessary party, namely the State of California, to defend the ban passed by its own voters.

The Utah case is the case the Supreme Court has been waiting for because Utah is an ardent defender of its constitutional ban on gay marriage. Two-thirds of the state's citizens are members of The Church of Jesus Christ of Latter-day Saints and/or Mormons, most of whom reject gay marriage. So, the case is almost prime! The Supreme Court is just waiting for it to be fully adjudicated by lower federal courts. Now, here's why the stay is so telling. First, the fact that the Supreme Court got involved at all and granted the stay is a clue that it would likely accept this case on appeal. Second, the fact that the Supreme Court granted the stay, even without any explanation as to why, signals a bias in favor of Utah. Here's why. Stays are granted based on four considerations under the Federal Rules of Civil Procedure, Section 62(c). First, that the requesting party demonstrates a likelihood it will succeed on the merits in its appeal; second, that no stay will result in irreparable harm to the requesting party; third, that there will be injury to other parties and fourth, in consideration of the public interest. The Supreme Court granted this stay in favor of Utah. Meaning, the Supreme Court was convinced that Utah is likely to succeed on its appeal, that the state and its citizens will be harmed by gay couples getting married in the interim and that it is in the public's interest to stop the marriages from continuing. Wow, does that sound like a Supreme Court that's going to ultimately rule in favor of gay marriage as a constitutional right?

What people often forget is that the Supreme Court isn't primarily guided by emotion or morality. Its decisions are based on which way the scale tips. There are many heavy considerations on that scale, including procedural and historical ones, balance of power considerations and don't forget the Court's reluctance to touch politically charged issues. Sure, morality may be in there somewhere, as is equality. But do you know what's really at the heart of this case? Whether the modern-day definition of equality among a minority of states, can compete with the deep rooted principles of Federalism and the traditions that have governed this country for more than 200 years. Keep in mind that this is not my personal opinion. These are the very issues articulated by the Court in United States v. Windsor. The majority opinion in that case tells us all we need to know about how this Court will likely rule in the Utah case.

Many states and gay advocates considered the Windsor case a victory. It struck down the Defense of Marriage Act, which denied gay couples equal access to federal benefits. But, the case also articulated a philosophy held by the court that does not look promising for gay rights advocates with regard to the issue of a state's right to ban gay marriage. The Defense of Marriage Act was struck down on the basis that it was a federal intrusion into state power. The majority spent the bulk of its opinion stressing the importance of Federalism and the long tradition of marriage being defined exclusively by the states. The Court said that because New York and its citizens had chosen to recognize Edie Windsor's right to marry, the federal government had no right to stigmatize and punish her or a group of people protected by the State of New York. The opinion repeatedly underscored the importance of states retaining exclusive control over all issues pertaining to marriage reasoning that the states legislate numerous issues affecting domestic relations law that flow from their basic definitions of marriage. Marriage is considered an institution that forms the basis of domestic relations laws. Those laws vary from state to state. Even the acceptable age for marriage is legislatively proscribed by individual states. The Windsor majority does not sound like a majority that's going to rule against a state like Utah where nearly two thirds of its population rejects gay marriage.

The decision's latent message seemed to be that federal law must defer to a state's definition of marriage. There was a small glimmer of hope in the majority opinion. It stated that the public has a right to decide public policy, but, those laws may not violate constitutionally protected individual rights. Later going on to say, that the Defense of Marriage Act violated the Fifth Amendment and indirectly the 14th Amendment's guarantees of due process and equal protection. So one may think that perhaps gay rights advocates will prevail on the basis that everyone should have the equal right to marry whomever they choose. However, even in its equality argument, the Court again deferred to the states. The Court didn't reason that homosexual persons deserve equal protection under the Constitution because it's a basic human right. Rather the Court said that they deserve it by virtue of a state declaring they deserve it. The Court said that if a state treats gay couples one way and the federal government treats them in opposition, then there is discrimination and inequality. The inequality stems directly from one governing body recognizing the group as worthy of protection and another not.

If you think any of this is a stretch then read the Windsor opinion. Here is just one excerpt from the Federalism-loving majority:

"By history and tradition the definition and regulation of marriage...has been treated as being within the authority and realm of the separate states....When the state used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity and protection of the class in their own community."

Meaning, the residents of a state decide who is worthy of dignity, protection and recognition. In other words, the majority in a state like Utah may espouse its own views on the minority. The attitude seems to be, dislike it? Leave. Now later the Court does offer some words that may be interpreted as another glimmer of hope for gay rights advocates by referencing Lawrence v. Texas, a 2003 case that recognized consensual sexual conduct between people of the same sex as a liberty protected by the 14th Amendment. The Court says that DOMA "places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects...and whose relationship the State has sought to dignify."

Again, a conundrum because the Court recognizes that the 14th Amendment protects moral and sexual choices, but again references the State almost as if it's the one giving the nod of approval. The Court even says that DOMA humiliates children born to or raised by gay couples, saying, "...the law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." In the latter excerpt, the Court actually appears to disagree with one of the main arguments that Utah has raised. The Court appears to favor gay marriage as being in the child's best interests. In contrast, Utah is presently arguing that studies show children born to heterosexual parents thrive and those raised by gay parents develop psychological problems.

All things considered, there's a possibility the Court may not even rule on this case, deeming it too political. Judicial review is exercised cautiously and the Court only has standing to adjudicate on a state law, if it violates federal law. Think about what the implications are from an abuse of power standpoint. In an environment where the majority of states do not recognize same-sex marriage and against a backdrop of a 200-plus-year history wherein the states have retained the power to define marriage and control all things domestic within their borders, it would be nothing short of shocking for the Court to rule against Utah. The Supreme Court would be usurping power from the states and giving it to the federal government. In addition, the Supreme Court would be reading a fundamental right into the Constitution that isn't expressly written. I'm not taking sides here. I'm merely saying that if the Court does take the case, rule on it and rule in favor of gay couples, it will be beyond historic, especially for a Court like this one. But, back to my thesis here, as Justice Roberts said in his dissenting opinion in Windsor, "the State's power in defining the marital relation is of central relevance." Opponents will argue that any such definition belongs to the states and/or is too ideological for the Courts. Gay couples will argue that it's a simple matter of equality, freedom and justice.