Same sex marriage restrictions are now at stake in Utah, as the state’s Attorney General, Sean Reyes (R) makes plans to take the state’s appeal of a lower court ruling to the United States Supreme Court in a move to protect Utah’s constitutional amendment banning gay marriages. Eight other states are watching this case very closely, because the decision may affect their own gay marriage bans.
In 2004, Utah passed its third constitutional amendment, defining marriage as the union between one man and one woman. That law was overturned in a December 20, 2013 decision when Federal Court Judge Robert Shelby overturned the Utah statute on the grounds that it violated the due process and equal protection clauses of the U.S. Constitution. A last-minute effort to obtain a stay from the same federal court failed, making same-sex marriages legal in Utah from December 20, 2013 until January 6, 2014, when the United States Supreme Court issued a stay pending an appellate court ruling.
On June 25, 2014, a three-justice panel of the U.S, Court of Appeals for the 10th Circuit issued a 2 to 1 ruling against Utah’s constitutional amendment, setting the stage for a showdown before the nine justices of the Supreme Court of the United States. This makes Utah’s appeal the first same-sex marriage case to reach the Supreme Court since the high court eviscerated key provisions of the Defense of Marriage Act on the very same grounds of due process and equal protection on June 26, 2013. In a 5-4 decision, the Court ruled that the federal government could not deny benefits such as Social Security survivor benefits to legally married same-sex couples.
In addition to being a closely watched keystone case that may discourage other states from even attempting to defend discriminatory statutes, the Utah case is part of an unusual trend in which lower courts are taking the lead in overturning restrictions on same-sex marriage, taking the lead away from the Supreme Court, which now has to play catch up while trying to issue rulings that do not overturn well-respected lower court judges. The Supremes have good reason to support the lower courts because that may stem the tide of states skipping over the en banc review process – which is when a party to a suit asks the full appellate court to review a panel’s decision – and heading straight to Washington, D.C, with their appeals.
The process that the same-sex marriage debate is going through right now closely resembles another social issue that has been attracting highly charged interest as one state after another has decided to legislate its way out of the War on Drugs – which no one talks about any more – by declaring marijuana legal in their states through the legislative process.
In one group of cases, the states are asking the federal government to protect their right to discriminate on the basis of sexual preferences while, in the other group, the states are defending their rights of their citizens to get high and challenging the federal government drug laws in the process, so far without an appreciable response from the federal judiciary.
The Supreme Court now has two possible courses of action to choose from in the gay marriage debate. The Court can refuse to hear the case, which would be a rebuke to Utah for not going through all the steps in the judicial process. That might be considered the judicial equivalent of a “Don’t call us. We’ll call you” message. The Court could also decide that they might as well take this bull by the horns now because they already know how it is going to turn out, and they might as well just get it over with and move on to something else. By supporting the lower court’s decisions on the Utah case, as the precedent suggests they will, the Supreme Court will be sending a “Don’t Bother Us – We’ve Gone Fishing” signal with respect to other same-sex marriage cases.
Same sex marriages are currently legal in 19 states, eight of which were made so by court decisions, while another eight were the result of legislation and three by popular vote. (A 20th jurisdiction, Washington, D.C. also enacted same-sex marriages by a popular vote.) In 31 states same-sex marriages are currently restricted, 26 by both constitutional amendment and state law, two by constitutional amendments, and three by state law.
In nine of those 31 states, including Arkansas, Colorado, Idaho, Indiana, Kentucky, Michigan, Oklahoma, Texas, Utah, Virginia and Wisconsin,where same-sex marriage bans have been overturned by either state or federal magistrates, appeals are under way to overturn the lower court rulings. In each of these cases, stays have been granted to prevent same-sex marriages from being performed or recognized in those states, leaving unknown thousands of same-sex couples in legal limbo.
These court cases could have serious financial implications for same-sex couples who are struggling with life threatening illnesses and may not be getting needed treatments because, under the same-sex marriage bans, health insurance companies are not required to provide spousal benefits. With the exsanguination of the Defense of Marriage Act, these financial implications take on increased importance because a same-sex marriage ban would prevent surviving members from same-sex couples from receiving the Social Security survivor benefits since those benefits are only available to surviving spouses in those states where same-sex marriages are legal. That, then, would make the Supreme Court’s actions setting aside the restriction from the Defense of Marriage Act irrelevant for those couples, setting the stage for court challenges based on the equal protection and due process clauses of the Constitution.
If the Utah same-sex marriage ban appeal is heard by the Supreme Court, the decision the court hands down will be the precedent on which the other eight pending appeals will be decided. This makes the impending decision potentially one of the most far-reaching decisions of this century to date, in terms of social implications for public policy.
By Alan M. Milner, National News Editor