After same-sex marriage ruling, Utah seeks to keep status quo
By Brooke Adams
The Salt Lake TribuneFirst published Dec 21 2013 09:48PM
Political commentator Rachel Maddow captured the reaction from people on both sides of the same-sex marriage debate when she asked why a Utah federal judge’s ruling Friday "feels different."
Was it because of what it may signal? the openly gay MSNBC talk show host asked. Or simply because "it’s freakin’ Utah?"
"It’s just the kind of thing you don’t think you’re ever going to see," said Maddow.
The ruling "feels like a bigger deal," as Maddow put it, because of its key focus on a state’s right to regulate marriage. Its legal reasoning has implications for some 28 other states with laws similar to Utah’s, foreshadowing a domino effect that U.S. Supreme Court Justice Antonin Scalia predicted might follow the high court’s decision this summer in United States v. Windsor.
"Major cases are pending in Pennsylvania, Virginia and a number of other states," said Carl Tobias, a professor at the University of Richmond School of Law, who specializes in judicial selection. "It is interesting how quickly this issue is moving."
In the aftermath of U.S. District Court Judge Robert J. Shelby’s ruling in Kitchen v. Herbert, which triggered hundreds of impromptu weddings in Utah Friday at several county clerk offices, state officials moved on two fronts to put the decision on hold while they appeal.
Shelby has set a hearing on the state’s request for a stay for 9 a.m. on Monday.
The judge declined an oral request from the state on Friday to stay his motion. Then Friday night the state filed a written motion with the judge, which Utah Gov. Gary Herbert said in a statement Saturday he hoped would receive an "expedited judicial resolution" because of the "chaotic situation" created by the decision.
There were varied responses Friday from county clerks across the state to requests from same-sex couples for marriage licenses. On Saturday, the Weber County Clerk’s Office scrapped its plan to open for an hour to issue licenses to gay couples, after a large turnout caused security issues and what County Clerk Ricky Hatch called "equal protection" concerns.
Herbert sent a letter to county clerks on Saturday advising them of steps the state was taking to "resolve these uncertainties" and advised them to consult with their attorneys, councils or commissions for guidance in the interim.
"It is important to me that the law as passed by the people of this state in defense of traditional marriage is upheld," Herbert wrote.
The state also filed an emergency motion with the 10th Circuit Court of Appeals in Denver on Friday that asked the appellate court to put Shelby’s decision on hold while the judge considers its request for a stay. And it asked for a swift decision, before Utah’s 29 county clerk’s offices opened on Monday and once again begin issuing marriage licenses to same-sex couples.
The filings included news accounts of licenses issued and marriages performed at the Salt Lake County Clerk’s Office Friday afternoon, to show that Shelby’s decision "substantially upsets the status quo" as enshrined in Amendment 3.
The amendment, passed a decade ago by two-thirds of Utah voters, defined marriage as only legal for a man and a woman and prohibited recognition of any same-sex unions.
A ruling from the 10th Circuit is "crucial to maintaining that status quo," the state said in its motion. "In the event that the district court’s decision is reversed," it said, "the licenses issued and the marriages performed in the absence of a stay may be void."
Attorneys for plaintiffs Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge, filed a response Saturday evening that said an emergency stay by the 10th Circuit was unnecessary given the hearing set for Monday.
A stay by either court would at least temporarily halt issuance of any new licences while an appeal is considered, a process that could take a year or more. But it would not affect the validity of marriage licenses already issued, said Clifford Rosky, a University of Utah law professor and board member of Equality Utah, an advocacy group.
If the 10th Circuit were to take up the appeal and later reverse Shelby’s decision, it would be "unprecedented" for the court to invalidate marriages that took place while the ruling legalized them, Rosky said.
"In the history of the U.S., no court has ever retroactively invalidated a marriage that was lawfully entered," he said. "To take away marriage after the fact would be extraordinary and discriminatory against gay couples."
In its motion asking for a stay, the state said Shelby’s ruling was a "fundamental shift away from society’s understanding of what marriage is" and had "taken the important public policy question of same-sex marriage away from the people of the state of Utah and, as such, constitutes a threat of irreparable harm to the democratic process in Utah."
In his 53-paged decision, Shelby noted that only in "exceptional circumstances" do federal courts intervene when "the state electorate has taken democratic action to participate in a popular referendum." Those circumstances were raised bythe question of whether the will of the people of Utah conflicted with the U.S. Constitution, he said, and the answer was yes.
"The U.S. Supreme Court has not, in recent decisions, articulated exactly the standard that should be used when you deal with these types of discriminatory laws," said attorney Peggy Tomsic, who represented the Utah plaintiffs. That is why, she added, the judge said he could not strictly rely on the Windsor decision analysis and "just did a traditional rational basis review" of Utah’s law.
"Whether it is our case or some other case, there will be a time the Supreme Court takes one of these cases and determines what the standard is," she said. Bill Duncan, director of the Center for Family and Society at the conservative Sutherland Institute, said Shelby’s decision "clearly" provides such an opening to test whether the Windsor ruling is an anomaly or "Roe v. Wadein slow motion," where federal judges take a cue and one-by-one get rid of state statutes like Utah’s.
While it didn’t seem to matter to Shelby, Duncan said, the question of whether federal courts are going to allow states to decide whether or not to permit same-sex marriage is "the core of what should be considered from here."
He said there were several "strange" aspects about the decision, including the speed with which Shelby made it and his "uncritical" acceptance of "every" claim the plaintiffs made.
Herbert on Friday called Shelby an "activist judge" who was trying to circumvent public consensus. And in the 10 years since voters approved Amendment 3, there have been only slight gains in support for gay marriage in Utah, according to public opinion polls.
A survey of 526 Utah voters conducted in 2012 by the Center for the Study of Elections and Democracy, based at the LDS Church’s Brigham Young University, found just 28 percent support gay marriage — up from 25 percent in a similar poll conducted in 2004. The biggest change was in support for civil unions — also banned by Utah’s Amendment 3 — which went from 25 percent in 2004 to 43 percent in 2012.
The BYU group noted the shift in Utah voters support for recognition of gay relationships occurred between November 2004 and January 2009, but researchers said they could not explain what was behind the change.
A separate poll of Utah voters by Public Policy Polling, based in North Carolina, conducted in 2011 found similar support for gay marriage, but noted that among voters ages 18-29 views were nearly split.
According to a July 2013 Gallup poll, 54 percent of Americans believe same-sex marriage should be recognized by law as valid.
But the bottom line of Shelby’s ruling is that ultimately public opinion does not matter, Rosky said, and while federal judges are cautious about overriding state law, it doesn’t mean they never do it.
"There is the will of Utahns and the will of Americans," Rosky said. "Nothing in Utah law is allowed to violate the Constitution."