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Federal Judges in Utah and Oklahoma Out of Bounds on Same Sex Marriage (Forbes.com) January 25, 2014

Posted by daviddavenport in Op/Eds.
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When the Supreme Court talks, other courts are supposed to listen. But when the Court gives mixed or muddled messages, federal judges are left with room to take the law where they wish. A good example of this is a recent pair of decisions by federal judges in Oklahoma and Utah declaring state bans on same sex marriage to be unconstitutional, outcomes that seem to be at odds with where the Supreme Court left things following its two decisions about same sex marriage announced in June.

In Hollingsworth v. Perry, the Supreme Court heard arguments last year that California’s Proposition 8, declaring that marriage was only between a man and a woman, was unconstitutional. Powerhouse litigators Ted Olson and David Boies brought the case to make that very statement, and federal judge Vaughan Walker of San Francisco conducted an elaborate trial to make a record on which such a decision could be based. But the U.S. Supreme Court declined to make a broad constitutional ruling, instead throwing out the appeal on the narrow ground that no party before the court had standing to defend the law. While the practical effect was to leave Judge Walker’s decision against Proposition 8 in effect, the larger constitutional questions were not addressed by the Court, evidently awaiting another case on a future day.

At the same time last June, the Supreme Court issued its opinion in United States v. Windsor, declaring portions of the federal Defense of Marriage Act (DOMA) unconstitutional because they deprived same sex couples of a federal estate tax exemption available to opposite sex couples. The Constitutional basis for the decision was muddled—part due process, part federalism, part equal protection, but mainly unclear—and the Court specifically said it was not addressing the broader question of the legality of same sex marriage, leaving that to the states. Justice Scalia, in his dissent, predicted that it wouldn’t be long before the states showed up in the Supreme Court pressing that very question.

So it seemed clear that the action on same sex marriage moved to the states and their political processes, either through state legislatures or ballot propositions. Perhaps a lesson had been learned from Roe v. Wade on abortion in the 1970s, where the Court made a rather abrupt pronouncement about abortion rights that has left the matter contentious ever since. Forty years later, the pro-life movement is going strong, reminding us that a court ruling does not make strongly held moral and religious views simply go away. Looking back, even progressives have acknowledged the abortion matter would have been less contentious had the matter been resolved deliberatively through the political processes of each state rather than abruptly for everyone by a court decision.

This seemed to be where the Supreme Court was leaving same sex marriage, to be resolved by the political branches in each state, not by federal courts. Chief Justice Roberts opened his majority opinion in Hollingsworth v. Perry by saying, “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.” Roberts continued, in his dissent in the Windsor case, by saying “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to decide the marital relation, may continue to utilize the traditional definition of marriage.” Justice Alito in his dissent in Windsor, joined by Justice Thomas, said it was not in the purview of courts to decide between two views of marriage, but that state legislatures clearly must do so. And decide they have: 8 state legislatures have legalized same sex marriage and 3 additional states have done so by popular vote.

So along come two federal judges, one in conservative Utah and the other in conservative Oklahoma, and they declare state state bans on same sex marriage to be unconstitutional. My point is not that the judges did not have the power to do this, or that they did so without careful deliberation. Federal judges famously do more or less whatever they want, so long as it does not directly violate Supreme Court precedents. My point is that the way the Supreme Court left things following its two muddled and unsatisfactory legal opinions in June was to give state political processes—legislatures and ballots—time to work this through. And these two federal judges are out of sync with that allocation of power (federalism) and that more deliberative approach to decision-making. The judge in Utah would not even stay his ruling pending appeal, leaving the legal status of a thousand marriages up in the air.

Too bad that two federal judges can overrule state constitutions passed by their people when the Supreme Court just said, in effect, there is no federal constitutional policy yet about same sex marriage. But then social engineering has long been a temptation that some federal judges cannot resist.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/01/24/federal-judges-in-utah-and-oklahoma-out-of-bounds-on-same-sex-marriage/

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