Re: AG Holder’s Lawless Action on Marriage in Utah

Attorney General Eric Holder’s declaration last Friday that the federal government will recognize the supposed marriages of same-sex couples that occurred in Utah between December 20, 2013, and January 6, 2014, deserves a somewhat fuller critique than my quick initial post provided.

Let’s lay the background:

1. The Utah constitution provides that “Marriage consists only of the legal union between a man and a woman” and that “No other domestic union … may be recognized as a marriage.” Utah statutory law further provides that supposed marriages “between persons of the same sex” are “prohibited and declared void” and that it is state policy “to recognize as marriage only the legal union of a man and a woman.”

2. Federal district judge Robert J. Shelby’s refusal to stay his December 20 judgment against Utah’s marriage laws during the appeal process is the primary cause of all that has ensued.

3. Judge Shelby’s refusal to stay his judgment was wildly irresponsible. The Supreme Court’s unanimous order overturning his refusal ought to slam the point home.

4. By refusing to stay his judgment, Judge Shelby invited a situation in which same-sex couples in Utah would be purporting to marry in violation of provisions of the Utah constitution and Utah statutory law that state officials were still defending in the ongoing litigation.

5. Same-sex couples who entered into purported marriages between December 20 and January 6 knew (or had ample reason to know) that the ultimate status of those purported marriages was uncertain. There’s plenty of room to quarrel over the odds, and I don’t pretend to be optimistic about what this Supreme Court might do, but no one can seriously contest that there is a significant (i.e., non-trivial) possibility that Judge Shelby’s ruling will be reversed on appeal (whether by the Tenth Circuit or by the Supreme Court).  

6. Same-sex couples who entered into purported marriages between December 20 and January 6 also knew (or had ample reason to know) that a higher court might stay Judge Shelby’s ruling pending appeal. Indeed, it would seem that many raced to avail themselves of the temporary window of opportunity.

7. The Supreme Court’s January 6 order removed Judge Shelby’s impediment to Utah’s continuing enforcement of its marriage laws. In other words, there is no dispute that Utah’s marriage laws have been fully back in force since that date. (The Utah AG’s incompetent understanding of what that means is another matter, but not relevant here.)

Now for Holder’s declaration. Let’s start with this statement of his:

Recently, an administrative step by the [Supreme Court] has cast doubt on same-sex marriages that have been performed in the state of Utah.

This statement contains two major distortions.

First, the Supreme Court’s January 6 order was not an “administrative step.” (It was not something akin, say, to the Chief Justice’s appointing the members of some advisory committee.) It was an exercise of “judicial Power” pursuant to Article III of the Constitution—an exercise of the same kind, but obviously of greater force, than Judge Shelby’s own order refusing to grant a stay.

Second, it was not the Supreme Court’s order that “cast doubt” on the supposed marriages that had occurred. Such doubt inhered in the supposed marriages from the outset. By allowing the supposed marriages to occur while the appeals process was still underway, Judge Shelby guaranteed that those supposed marriages would be infected by doubt. And the same-sex couples who purported to enter into them knew (or had ample reason to know) that before they acted.

Now let’s consider Holder’s central claim that the “letter and spirit” of the Court’s anti-DOMA decision in United States v. Windsor call for the federal government to treat those supposed marriages as “lawful” “for purposes of federal law.”

As for the “letter” of Windsor: The majority in Windsor complained that DOMA was an “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage” and that it “creat[ed] two contradictory marriage regimes within the same State.” Here, it’s Holder who is “deviat[ing] from the usual tradition of recognizing and accepting state definitions of marriage,” and it’s Holder who is “creating two contradictory marriage regimes within the same State.” There is nothing in the letter of Windsor or in its reasoning that justifies the federal government in treating as a marriage something that the state of supposed celebration does not recognize as a marriage.

But insofar as the “spirit” of Windsor is that legal principle and reasoned decisionmaking should be jettisoned in order to advance the cause of radically redefining marriage to accommodate same-sex couples, Holder’s declaration is indeed true to that spirit.

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