Last Friday, deep-red Utah became the latest state to legalize same-sex marriage, thanks to a federal district court ruling. Unlike the recent ruling of the New Mexico Supreme Court, which focused on state legislative language that did not explicitly specify that marriage was restricted to opposite-sex couples, U.S. District Judge Robert J. Shelby relied on federal due process and equal protection grounds in developing an opinion that offered little consolation to defenders of traditional marriage. (For those of you who think that the two major parties are indistinguishable, note that Judge Shelby is an Obama appointee.)
The initial ruling certainly grabbed my attention, but what happened next caught me by surprise as well. District court victories are hardly meaningless, but the euphoria often evaporates once an appellate court has had its say. On Tuesday, however, the Tenth Circuit Court of Appeals, a circuit hardly known for its liberalism, denied Utah’s request for an emergency stay, thus leaving the door open for same-sex couples in Utah to rush to county clerks’ offices before the district court ruling can be reversed. (The quotation in the header comes from a woman seeking a marriage license in Salt Lake City; I wonder whether anyone in a religiously conservative state shared my impression that the couples resembled the Israelites scrambling to flee Egypt before the pharaoh could retract his grant of freedom.) As of today, at least 700 couples have been wed in the state, and barring a stay from the U.S. Supreme Court, even expedited proceedings from the Tenth Circuit will leave ample time for many more couples to add to that number.
The impact of the Tenth Circuit’s ruling goes beyond its immediate impact on couples seeking to wed, though. It also foreshadows how it might handle the eventual appeal. A refusal to stay the lower court suggests that the state failed to demonstrate either an irreparable harm from allowing the ruling to remain in effect, or a likelihood of prevailing on the merits in its appeal. The Tenth Circuit could deny an emergency stay and still reverse the district court, but the same factors that resulted in a denial of a stay would presumably enter into the question once the appeal is heard.
Given recent events in Ohio and New Mexico, it’s inevitable that the Supreme Court will soon have to tackle the question left unanswered by its landmark ruling in Windsor last term: whether states may outlaw same-sex marriage or refuse to recognize same-sex marriages performed in other states. We’ll learn then whether Justice Kennedy’s appreciation of federalism outstrips his appreciation of gay rights. But the willingness of legal activists to test him reflects a certain confidence in the Court’s direction on the issue. Until fairly recently, a prominent line of argument among gay-rights activists was that the battle should focus primarily on expanding the realm of marriage equality on a state-by-state basis, lest an unfavorable Supreme Court ruling set back the cause nationwide. Indeed, David Boies and Ted Olson were viewed skeptically, by such stalwarts as the Lambda Legal Defense Fund and Gay and Lesbian Advocates and Defenders, for challenging California’s Proposition 8 prematurely and leaving the movement vulnerable to a judicial setback.
But victories at the Supreme Court last year have emboldened gay-rights advocates to bring suit in more challenging terrain. Of the three states where courts have spoken most recently, New Mexico presented the lowest-hanging fruit, as its laws did not explicitly restrict marriage to opposite-sex couples. There, a court simply had to choose to rely on the state law’s plain meaning, rather than default to the traditional definition of marriage. The Ohio court did not rule on same-sex marriage directly, but in holding that death certificates had to recognize as widowers same-sex spouses married in other states, it presented a logic that will be very hard to confine to the narrow legal question presented, and will feature prominently in attacks on the non-recognition language in the federal Defense of Marriage Act. And, as noted earlier, the Utah court gave equal protection and due process a broad reading in invalidating a state constitutional ban on same-sex marriage. The variety of legal challenges, coupled with their ubiquity, signals a certain confidence that the movement for marriage equality will not be turned back. For me, the interesting unanswered question is not whether the Supreme Court will have its Loving v. Virginia moment, but whether intervening state-level action will make the Court’s ruling superfluous in all but the most diehard holdout states.