Poetic justice happened yesterday in Utah. In 2008, the Mormon Church played a huge role in temporarily overturning the California Supreme Court’s In re Marriage ruling by passing Proposition 8, which was itself only overturned effectively this past June 26 when the U.S. Supreme Court found that the proponents of the measure lacked standing to appeal a federal district court’s decision that it was unconstitutional. That ruling, but more importantly, the ruling in a case from New York involving federal refusal to recognize same-sex marriages, set off an avalanch of new litigation, some cases brought by the LGBT litigation groups, but others initiated by local lawyers enlisted by same-sex couples eager to marry.
And now we have the fruits of that summer 2013 effort ripening into results, with the number of marriage equality jurisdictions steadily increasing. Yesterday in Utah, people were lining up in county clerks’ offices for the third day of marriage equality in the state where Mormons allegedly rule. (I say “allegedly” advisedly, noting the futile efforts by the Mormon governor and attorney general to forestall marriages while they play out the endgame in the appellate courts.)
Yesterday, two judges of the U.S. Court of Appeals for the 10th Circuit, based in Denver, agreed that the state failed to meet the evidentiary burden for staying a district court decision, falling short on the most important two grounds – that there was a good likelihood the state would prevail on appeal, and that there was also a good likelihood that failing to stay the decision would cause real harm to the state. It is increasingly difficult for state officials to make such arguments, for the simple reason that we have had marriage equality in the U.S. for almost a decade without any discernible harm to those jurisdictions where it exists.
Same-sex couples have been marrying in Massachusetts since May 2004, and so far the state’s rankings on the two most significant indicia of harm, remain what they were. Massachusetts has one of the highest percentages of married couples in the nation, and one of the lowest rates of divorce. (States with low rates of marriage and high rates of divorce tend, ironically, to be states that most staunchly resist marriage equality.) Thus, one might posit that if trends and statistical associations mean anything, staying the Utah federal district court decision would not benefit the state; quite to the contrary, it would harm same-sex couples who are excluded from marriage without discernibly affecting the rate of marriage or divorce in Utah. And, of course, as Judge Shelby found in his decision, it would harm children who are being raised by same-sex couples, by depriving them of the security and benefits associated with having married parents.
The 10th Circuit judges did more than deny the stay. They also ordered that the Circuit consider the state’s appeal on an expedited basis. This has the merit of reducing the time when same-sex couples who have been marrying since last Friday face uncertainty about the validity of their marriages, and also may have the effect of catapulting this case ahead of the Nevada marriage case, now pending in the 9th Circuit, in the march of this issue back to the Supreme Court, which evaded ruling on the merits in the Proposition 8 case on standing rounds.
There can be no doubt that the state has the interest and the standing to bring this case to the Supreme Court. Indeed, they are filing an “emergency” petition tomorrow to try to get a stay. If they get a stay, it will be relatively brief, because of this order to expedite the appeal. And expedition of the appeal shouldn’t impose a great burden on the parties, since they already have done the research and developed the legal arguments in their summary judgment papers from the district court, which need only be adapted and updated for filing with the court of appeals.
If the stay is not granted, will the governor and attorney general wake up to the reality faced by New Jersey’s governor this fall, when a unanimous refusal of a stay by the state supreme court led to abandonment of the appeal? This would make sense for the state of Utah, and it would also make sense for the opponents of same-sex marriage nationwide, who now should want to forestall a U.S. Supreme Court ruling that seems most likely to go against them. Once the Supreme Court rules on the question for marriage equality, the game is over and the most die-hard anti-gay states will have to fall in line. So the forces of anti-gay reaction should logically embrace the tactic of forestalling a Supreme Court ruling by discouraging states from appealing adverse rulings at the court of appeals level. But these people have not been adroit in marshalling short-term tactics to string the game out.
Meanwhile, same-sex couples in Utah can rejoice in having the choice to line up for marriage licenses tomorrow morning — if there remain any same-sex couples who want to marry but who haven’t gotten their act together sufficiently in the past few days to do so. The window of opportunity may be short, depending how quickly Justice Sotomayor rules on the “emergency” petition. (I keep putting “emergency” in quotes because it is so obvious that there is no real emergency, as multiple judges have now found that the state is not harmed by letting Judge Shelby’s decision remain in effect.)
Merry Christmas to the marriage equality movement on yesterday’s victory, and good cheer for the New Year to the 40+ sets of plaintiffs whose marriage equality lawsuits in more than 20 states are now pending. And congratulations and thanks to the courageous federal district judges and state judges who have been writing such beautiful and passionate opinions in these cases over the past several months since the U.S. v. Windsor ruling. It is a joy to read them.
Art, Thanks for your very optimistic reading of the recent court decisions! Hoping for the best! Joe