Utah Gay-Marriage Ban Was a Predictable Disaster
Confused because the Supreme Court just blocked same-sex marriage in Utah? Don't worry, you're not alone. The court, you see, was for gay marriage before it was against it. Or kind of -- you see, to put it in technical legal terms, this is a total friggin' mess. And, oh yeah, one thing: it was to be expected all along.
Start with the court's decision last June. It struck down the federal Defense of Marriage Act as a violation of the equal dignity of gay people. That's probably why you remember it -- a major landmark decision on broad constitutional principles so similar to genuine morality as to make the difference all but impossible to see. And the federal district judge in Utah who struck down the state's ban on gay marriage thought the same as you did. He interpreted U.S. v. Windsor to require equal dignity and the law banning marriage as a derogation from that value.
The trouble comes in the fine print of the Windsor decision. Justice Anthony Kennedy included language reminding us that marriage is the province of state -- not federal -- law. He left open the possibility that states could themselves choose not to allow gay marriage. And he declined to stretch the issue, presumably believing that the country wasn't ready for a blanket requirement of gay marriage everywhere. As a result of this decision, the justices today put up a temporary ban, and the court of appeals will now have to rule on whether Utah's gay marriage law stands or not. And then, if and when the Supreme Court is ready, it can hear the issue itself -- preferably no time soon.
After he ruled for gay marriage, the district judge declined to stay his ruling pending appeal, and the court of appeals agreed. The Supreme Court, though, has now disagreed. It gave no reason, but in theory it is supposed to have accepted the logic of Utah's argument, which was that it would be hard to unwind marriages contracted since the ban was struck down if the ban is eventually upheld.
The fact that the Supreme Court had to step in shows everything that was wrong with the Windsor decision. Striving for gradualism, it gave us confusion. Right now in Utah, some people are in a marriage limbo. They have married since the district court ruling, and now their unions are recognized by the federal government, too (one presumes) under Windsor. If the state ban is reinstated, what then? They will be unmarried (maybe) under Utah law. Will they be federally unmarried, too? It's not an abstract question, since they might not be able to get married in other states that recognize gay marriage since they aren't residents of those states. In short, we may be facing citizens who are married in no state but are married federally.
In the 1955 sequelto the landmark Brown v. Board of Education decision, the court famously -- and unwisely -- told the Southern states to desegregate "with all deliberate speed." There followed years of resistance, judicial judgments and ultimately the sending of airborne troops to Little Rock, Arkansas. The Windsor opinion was a modern Brown. It declared a broad principle, then tried to acclimate the public through gradual acquiescence. Once again, this approach was a mistake.
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Noah Feldman at email@example.com