The recently-concluded holiday season found parties on both sides of the marriage equality debate embroiled in what may prove to be the next matter decided by the United States Supreme Court on this issue. A decade ago, in 2004, two-thirds of Utah’s voters approved a ban on same-sex marriages, defining “marriage” as occurring only between a man and a woman. However, on December 20th, U.S. District Judge Robert Shelby invalidated this law when he ruled that Utah’s prohibition of these unions violates the right to due process and equal protection for gay and lesbian couples guaranteed under the United States Constitution. Judge Shelby’s ruling is the first decision to strike down a state marriage ban after the United States Supreme Court issued its opinion on same-sex marriage this past summer in United States v. Windsor.
Subsequent to Judge Shelby delivering his decision invalidating the ban, nearly 1,000 same-sex marriages have been performed in Utah, a conservative state where the majority of the population is Mormon. The State – claiming that the decision has created a “rush to marry” before its validity is tested on appeal – had previously asked both Judge Shelby and the U.S. Circuit Court of Appeals for the 10th Circuit to impose an emergency stay of the ruling while it is being challenged on review. The State’s request was denied once by Shelby and three times by the 10th Circuit, although that court set an expedited hearing schedule to review the appeal, requiring all filings due by the end of February.
Utah thereafter turned to its final option, elevating its request for a stay to this Nation’s highest tribunal. Under the Rules of the Supreme Court, emergency petitions are filed with the Justice who oversees the Circuit – in this case, with Justice Sonia Sotomayor. Sotomayor may either handle the application for a stay herself, or she may refer it to the full court for consideration. If she decides to rule on her own, the losing party may ask another Justice to reconsider the ruling. By custom and practice, however, the matter would then likely be handled by the full court. If the full court considers the issue, a five-justice majority must agree to order the stay, and there is no set time within which the decision must be made.
In his ruling invalidating the Utah statute, Judge Shelby noted that prior decisions of the United States Supreme Court had recognized that the freedom to marry is a fundamental right based on individual liberty, privacy and freedom of association — rights that under the 14th Amendment trump a State’s rights where there is a conflict between the two. Shelby also found that Utah presented neither a rational basis for denying same-sex couples the right to marry, nor a “rational link” between a ban on same-sex marriage and its interest in having children raised by opposite-sex, married couples. The Judge did determine, however, that a law barring same-sex marriage “humiliated” children in such households “for the same reasons that the Supreme Court [in Windsor] found that [the federal Defense of Marriage Act [DOMA]] harmed the children of same-sex couples.”
In attempting to obtain a stay of Judge Shelby’s decision from the United States Supreme Court, Utah must show an error by the lower courts in denying the stay request, that it is likely to prevail on appeal and that serious damage will occur if the ruling is not stayed.
In its 100-page application for a stay, Utah attempted to meet its burden on each point. It first argued that this case “squarely presents the question that this Court expressly left open” in its decision in Windsor - i.e. whether states may bar same-sex couples from marrying and refuse to recognize marriages performed in other states. In Windsor, the Supreme Court struck down the DOMA provision as an improper federal intrusion because it barred same-sex couples from receiving federal benefits even in states where they were legally married. According to Utah, the High Court’s reasoning and decision in Windsor preserved the power of states to regulate and define marriage, and thus, in its view, Judge Shelby had improperly created a new constitutional right for same-sex couples by ruling that its ban violated federal guarantees of due process and equal protection.
In its filing, the State observed that “[n]umerous same-sex marriages are now occurring every day in Utah,” and argued that “[e]ach one is an affront not only to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels, but also to this Court’s unique role as final arbiter.” Utah further asserted that it is “indisputable” that states “have a powerful interest in controlling the definition of marriage within their borders,” and argued that same-sex marriage is a “recent innovation” that is not “deeply rooted in the nation’s history and tradition.”
In addition, Utah claimed that Judge Shelby’s decision caused irreparable harm based upon its belief that children should be raised by a mother and father, rather than by a same-sex couple. Pointing to social science studies it claimed supported its position, the State contended that upholding the ban would allow it to ensure that more children are raised in this “optimal” environment.
In response to the state’s rights arguments advanced by Utah, the attorneys representing the plaintiffs relied upon arguments grounded in individual rights. The plaintiffs’ attorneys maintained that in Windsor the Court did not rely on principles of federalism but rather on the individual rights of due process and equal protection guaranteed by the U.S. Constitution, thereby requiring state marriage laws to pass constitutional muster. According to the plaintiffs, Windsor’s recognition of a protected liberty interest in marriage “supports invalidation of Utah’s refusal to recognize the lawful marriages of same-sex couples who married in other states.” While acknowledging that Windsor did not decide the “ultimate” issue of whether a state is constitutionally required to allow same-sex couples to marry or to recognize their existing marriages, the plaintiffs’ attorneys took the position that Windsor’s reasoning and analysis “strongly” support the conclusions reached by the lower courts in declining to issue a stay.
The plaintiffs’ lawyers also contended that in its application for a stay, Utah failed to address equal protection issues based on sexual orientation, which require the application of a heightened level of scrutiny. They wrote: “As the district court correctly held, the [Supreme Court’s] analysis [in Windsor] of the profoundly stigmatizing impact of laws that single out same-sex couples for discrimination with respect to marriage applies equally to Utah’s laws excluding same-sex couples from the ability to marry.”
Further, in responding to Utah’s argument characterizing same-sex marriage as a “recent innovation” that is not “deeply rooted in the nation’s history and tradition,” the attorneys stated: “When analyzing cases involving fundamental rights, this court has not held that the contours of a fundamental right can be limited based on who seeks to exercise it or on historical patterns of discrimination.” They contended that the plaintiffs do not seek a new right, as Utah argued, but rather to exercise an existing fundamental right.
Finally, the attorneys for the plaintiffs also criticized Utah’s claim that Judge Shelby’s decision would likely be reversed based on a “hodgepodge of articles that purportedly show that same-sex parents are inferior to opposite-sex parents.” The attorneys maintained that the State’s premise was false, and, in any event, did not resolve the constitutional issue presented in the case.
With same-sex marriage currently being debated in more than 25 states, and federal lawsuits pending in more than a dozen, this matter is certain to only be the beginning of litigation over these complex and novel issues of constitutional law.