Supremes Slow It Down, Public Catches Breath

Justice Ruth Bader Ginsburg

Just as surprising as Judge Shelby's Federal District Court decision striking down Utah's laws against same-sex marriage, the US Supreme Court just surprised us by granting a stay on Utah licensing same-sex marriage after the 10th Circuit twice denied such a stay. There was no written opinion, so any interpretation is pure speculation. Here's mine.

Based on the make-up of the Court, I think there are two things at work here. First, Justice Ginsberg, one of the more liberal four, has expressed her concerns about the activist conservative nature of the present court. She also thinks that the case establishing a constitutional right of abortion, Roe v. Wade, was decided too soon (it's an odd case anyway with it's arbitrary trimesters established by the Court). The Court got ahead of public opinion on that one no matter how strongly she feels about the right to personal decisions over women's health and reproduction and the case has caused a lot of political and judicial turmoil since.

Justice Anthony Kennedy

The second thing is that with four liberal justices and four pretty solidly conservative justices, Justice Kennedy as the only swing vote is a big federalism kind of guy. Even if the Chief Justice himself went with the majority on the DOMA and Prop 8 Cases, those decisions were decided in the most limited way possible (maybe that's a third thing).

So, while nobody can predict what the Supremes will do, I think that the eventual result of the same-sex marriage cases percolating up will not directly establish a new, constitutional right to same-sex marriage. They may follow some of the DOMA reasoning striking down laws that specifically target same-sex unions. But I think they will rule on federalism grounds that states can set their own criteria as to who may marry unless it violates a fundamental constitutional right such as freedom from discrimination based on race in the mixed-race marriage case (Loving v. Virginia). They will not establish gayness, lesbianism, homosexuality, or same-sex couples as a protected class. However, as same-sex marriage is legal in several states and is trending towards more acceptance, the full faith and credit and privileges and immunities clauses of Article IV and the Fourteenth Amendment of the U.S. Constitution require all states to recognize the legal validity of any marriage performed in any of the states.

Bottom line, Utah and other states will not be required to license same-sex marriages, but they will be constitutionally required to give legal validity to same-sex unions legally entered in other states. That's how to get five, maybe six (with Roberts) votes in the Supreme Court.

Chief Justice John Roberts