By Mike Dorf
This being Christmas Eve, I'm only going to put up a very short post on this very important topic.
The 10th Circuit has denied the State of Utah's emergency motion to stay the district court judgment invalidating Utah's ban on same-sex marriage, with the consequence that Utah now has SSM. The state could seek (and by the time you read this perhaps already will have sought) emergency review by the Supreme Court. The ordinary procedure would be to seek relief from the Circuit Justice--in this case Justice Sotomayor--who, in a case as important as this, would likely refer the application to the full Court.
In my view, this is one of those rare cases in which the correct moral outcome is also the correct legal outcome, but is still wrong. I should explain.
Permitting marriages to go forward is correct morally for the innumerable reasons why it is simply unfair, unequal and unjust to deny people the right to marry based on sex or sexual orientation or the fact that they are unlikely to produce children accidentally or whatever other stupid rationalization is now being offered to support a policy that, at this point, must be recognized as simply a product of prejudice.
Permitting marriages to go forward is the correct legal outcome because one of the necessary conditions for extraordinary relief is that the party seeking such relief--here the state of Utah--be able to show a substantial likelihood of success on the merits. Given Windsor (the DOMA case), as explicated by the district court opinion, the state has not done so.
Nonetheless, I think that the district judge should have stayed his judgment and that, once he failed to, the 10th Circuit ought to have stayed his judgment because only a fool can confidently predict exactly what the Supreme Court will do in this case. I think the Court will probably affirm--leading to legalized SSM nationwide--but it's pretty clear that even the five Justices who are sympathetic to SSM would rather take a few years before getting there. If their hand is forced, as it now will be, it's impossible to say with certainty what they'll do.
Thus, there is a real chance--less than 50/50 but I would say above 10%--that either the 10th Circuit or the Supreme Court will say that Utah is not obligated to permit SSM. If that happens, then the Utah same-sex couples who married in the interim will find that their marriages have been voided, leading to heartbreak and chaos. And by contrast with California after Prop 8, the Utah Supreme Court probably will not "grandfather" those marriages.
That would be a truly awful result--and one that can be avoided if the district court ruling is stayed for the months or even year and a half it will take to fully litigate the case. I realize the oddity of arguing for an outcome that I regard as both morally odious (because justice delayed is justice denied) and legally wrong (the standard being what it is), but in this case that is where I find myself.
Perhaps my concern would be sufficiently mitigated if all of the couples who are now marrying in Utah were told that their marriages might not last. I doubt very much that they will be given such a warning--but maybe, just maybe, they don't need one. Maybe these couples are marrying as a form of political activisim, in much the way that SF couples married pursuant to Gavin Newsom's 2004 decree. If so, then I recant and I applaud the district court and the appeals court for following the law.