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This summer, the U.S. Supreme Court issued a narrow decision striking down a law approved by Congress in 1996 that said that when the term “marriage” was used in federal law it meant the union of a husband and wife. In that decision, the majority noted repeatedly that the regulation of marriage is appropriately a matter for State law. The only exception would be where a state law violated a provision of the U.S. Constitution, such as a law that imposes racial restrictions on marriage which would clearly violate the Fourteenth Amendment which prohibits state laws that impose disabilities because of race.


Activists and their attorneys around the nation seemed to sense blood in the water and filed dozens of lawsuits challenging state marriage laws across the country, hoping the Supreme Court would forget deference to state laws.


Utah was one of the targets. The plaintiffs challenging Utah law were breathless in their indignation: “This amendment is one of the most draconian deprivation of rights in the United States.” (Have they ever heard of slavery? Jim Crow laws?) This accusation was made with a straight face notwithstanding that Utah’s law is the same as a majority of states. The moral obtuseness of saying that a state law merely recognizing the virtual universal understanding of marriage is “draconian” is nearly incomprehensible.


On December 4, Judge Robert Shelby held a hearing on the constitutionality of Utah’s marriage law. At the hearing, Judge Shelby asked the attorneys if he were to strike down Utah’s law, he would be the federal first trial court judge to invalidate a state marriage amendment on constitutional grounds (plaintiffs’ attorney incorrectly said “no”). At the time, both sides thought he was asking this because he was reluctant to break new ground. They were soon to be disabused of that notion. Also in the hearing, Judge Shelby said he thought he’d have a hard time getting a ruling prepared by January as he’d originally suggested.


That’s one reason why Utahns were stunned when the 53-page decision was handed down two weeks later. More than the speed of the ruling, it was the brazenness of the decision that was stunning. Judge Shelby accepted virtually every argument made by the plaintiffs no matter how implausible (a law that requires both a man and a woman for a valid marriage is sex discrimination! the history and tradition of the nation includes a right to same sex marriage!). Even arguments rejected by courts that had mandated same-sex marriage were accepted here.


The decision rests on a fundamentally flawed premise. Judge Shelby defines marriage as “a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” From this redefinition, he proceeds to, implausibly, twist constitutional doctrines to conclude that Utah has a duty to replace its child-centered understanding of marriage with this notion of marriage as a government program for giving its stamp of approval to all adult emotional choices.


Unfortunately, even this was only the beginning. Even though the court knew the decision would be appealed (as such a radical break with precedent and constitutional analysis was sure to be), he refused to allow a “stay”-the court order that allows the status quo to prevail while a trial court decision is challenged on appeal.


Salt Lake County, showing a remarkable indeed uncanny speed began issuing marriage licenses and solemnizing same-sex marriages that afternoon. Two judges on the U.S. Court of Appeals for the Tenth Circuit decided they too could not be bothered with allowing the marriage law approved by 2/3 of Utah voters to remain in place while one judge’s opinion to the contrary is appealed. So, today the State of Utah asked Supreme Court Justice Sonia Sotomayor to order the stay.


Why was the stay not issued earlier? It’s not clear. At oral argument, Judge Shelby noted that neither he nor any of the parties expected that his ruling would be the last word. In a case where the result was so novel, certainly a stay should have been issued to allow other courts to correct errors in the original decision. The only reason a stay should not issue is if there’s no possibility that the State would be able to show Judge Shelby’s original ruling was mistaken. Here, that’s more than possible, it’s probable. Judge Shelby’s ruling is hardly routine, it’s directly contrary to the two most recent cases in district courts where the laws of Hawaii and Nevada were upheld.


So it’s not clear why a stay was not issued here. The possibilities do not speak well for the health of our constitutional system. For instance, the judges may be wanting this case to be presented as a fait accompli so the 10th Circuit and Supreme Court feel pressure to uphold the original decision. Or they would like to create embarrassment for the State of Utah. Whatever the motive, it is not the place of federal judges to order that the social order of a state be turned upside down within hours without first allowing the normal appeal process to proceed.


Whatever happens in that regard, the State is now preparing its argument for the Tenth Circuit which will be due at the end of January. Around the same time, the State of Nevada will be submitting its arguments in favor of that state’s marriage law in the Ninth Circuit. Perhaps other federal courts will issue rulings regarding other states’ laws and an eventual appeal to the U.S. Supreme Court seems very likely.


In the midst of this marriage chaos, those who recognize the reality that men and women are different and who honor children’s most basic entitlement-to be reared by their own married mother and father (or a married husband and wife when their own parents cannot), must continue to stand firm in the conviction that federal courts don’t determine the meaning of marriage.


They must, as eloquently as they can in word and example, stand for these most basic truths, come what may.