It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.
This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)
Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.
In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.
The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.
So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).
As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.
Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.
So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.
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