Bench Memos

AG Holder’s Lawless Action on Marriage in Utah

Jaded as I am by the lawlessness of the Obama administration, I confess that I didn’t expect this:

Attorney General Eric Holder today declared that the federal government will recognize the supposed marriages of same-sex couples that occurred in Utah before the Supreme Court overturned federal district judge Robert J. Shelby’s wildly irresponsible failure to stay his judgment against Utah’s marriage laws. Holder’s statement mischaracterizes the Supreme Court’s order as an “administrative step.”

Worse, Holder wrongly invokes the Court’s anti-DOMA decision in Windsor v. United States to justify his action. But Windsor requires that the federal government treat as marriages those same-sex relationships that a state recognizes as marriages. It doesn’t call for the federal government to treat as marriages those same-sex relationships that the state in which the marriage supposedly took place does not recognize as marriages.

Thanks to Will Baude on the Volokh Conspiracy, I see that the Utah attorney general issued very strange legal advice yesterday concluding that the supposed marriages “were recognized” under Utah law during the period prior to the issuance of the Supreme Court order. But Utah is no longer recognizing those supposed marriages, and Holder’s statement (which doesn’t cite the state attorney general’s advice) acknowledges as much.

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