Gay marriage in Utah was legal for 17 days, and now over 900 gay couples are in legal limbo. PHOTO: Reuters
The reddest state in the entire U.S. now has over 900 legally married same-sex couples, and they may soon have a lot more. Utah, a fair prediction for the last state to allow same-sex marriage, became the 18th, at least for a while, after a federal judge ruled that having separate rights for gay couples was unconstitutional. District Judge Richard J. Shelby refused to put a hold on same-sex marriages while waiting the results of an appeal from Utah’s Attorney General, as did a 10th Circuit Court of Appeals Judge. Finally, the Supreme Court agreed to put a stay on Utah’s same-sex marriages, but not before 17 days and over 900 gay marriages had happened in Utah.
So, what happens now? The question is likely to be taken up by the Supreme Court, and that’s where things will get very interesting. The Supreme Court struck down the Defense of Marriage Act (DOMA) last summer and declined to rule on a California judge’s decision striking down that state’s same-sex marriage ban. (Incidentally, Utah Mormons are often credited with leading the campaign for California’s Prop 8, which struck down same-sex marriage in California in 2008.)
It’s difficult to see the Supreme Court managing to justify ruling DOMA unconstitutional, but still allowing states to decide to disallow same-sex marriage. As many contentious issues before the Supreme Court do, this boils down to the opinion of Justice Anthony Kennedy. The non-Kennedy vote in the Supreme Court will almost certainly be 4-4.
How will Kennedy rule? Well, he wrote the decision striking down DOMA, so we can look there for clues:
“DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.”
The main thrust of Kennedy’s argument is that the federal government was out of line ruling on an issue normally decided by the states, and using that ruling to deprive certain people of rights. The big question is which part of that is more important to Kennedy, the states’ rights part or the protection of equal rights part?
And will Kennedy feel the need to balance out his major gay rights decisions to keep his reputation as the man in the middle?
And isn’t it funny how arguably the most powerful man in America is mostly unknown and was never elected?