Bench Memos

Re: The State of Marriage in Utah

As I’ve explained, I think that the status under Utah law of the supposed marriages that same-sex couples entered into before the Supreme Court’s January 6 order is simple: They’re void.

For anyone who resists this conclusion, consider this hypothetical:

The laws in State X provide that concealed-carry permits for handguns shall not be available to persons who have been convicted of violent felonies and that any permits issued to such persons are “declared void.” A federal district judge rules that the laws violate the Second Amendment, declines to stay his order, and requires State X to provide permits to convicted felons. Two weeks later, after hundreds of convicted felons have obtained concealed-carry permits, the Supreme Court issues an order barring the district judge’s ruling from having any further effect pending appeal. Does anyone doubt that state law means that state officials should treat the issued permits as void?

I am, of course, not “comparing” same-sex couples to violent felons. I am instead simply illustrating the broader principle at work and am doing so through an example that might test the policy biases of those who resist my conclusion about Utah marriage laws. (If there is a better hypothetical, I haven’t thought of it.)