Endgame?

December 21, 2013

I was going to post some seasonal reflections yesterday or today, with just a passing note of congratulation to New Mexico for becoming (as I had anticipated) the 17th state with marriage equality. Then I saw the news that Utah of all places suddenly leapt into place as 18th.

http://news.yahoo.com/gay-couples-wed-utah-judge-overturns-ban-001651193.html

http://www.nytimes.com/2013/12/21/us/utahs-gay-marriage-ban-is-ruled-unconstitutional.html?_r=0

Much of the coverage of this surprising development centers on the fact that Utah is the home state (and is mostly populated by members) of the Church of Jesus Christ of Latter-Day Saints, aka Mormons, whose opposition to same-sex marriage led them to spend prodigious amounts of money to support Proposition 8 in California a few years back. In addition, the state had adopted its own constitutional amendment to the same effect. (New Mexico on the other hand was the only state where the marriage law simply said nothing about gender, because until a couple of decades or so no one thought it necessary…)

But to me the striking thing is that for the first time to my knowledge a federal district court stated explicitly, and made it the basic legal grounds for a decision (the “law of the case” as they say), that equal marriage is itself absolutely required by the federal constitution. Previous court rulings had been based on equal protection clauses in the constitutions of the various states, which is why they were in some cases overturned by state constitutional amendments such as Proposition 8. The only way to reverse such an amendment, short of a ruling like the one in Utah, is for the state to enact a new counter-amendment, as I think  was done recently in one or two states. But invocation of the federal constitution trumps anything a state can do. No court had quite taken this step to date, because of the ramifications: if the federal constitution mandates marriage equality, it mandates it everywhere, in all states. End of all DOMAs at any level, once and for all. So such a decision will certainly be appealed and almost certainly be heard by the Supreme Court.

The district court that overruled Proposition 8 delicately stopped short of this, settling for a rather tenuous argument based on the fact that California had already recognized marriage equality, and the act of taking it back once it had been granted was what triggered special scrutiny. It is unclear whether this would have survived a proper appeal; what destroyed Prop 8 was the decision by Governor Brown and the Attorney General of the state not to back the appeal, leaving only a question of standing for higher courts to deal with summarily and with no precedential value.

Now, that cat is out of the bag. The State of Utah will appeal, and if it loses, that’s the end. Equal Marriage for all.

If it wins, the struggle continues…

 

 

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