Today, the law of Utah says that marriage is an association of a man and a woman, or a man and another man, or a woman and another woman. Not, however, because a massive cultural change in the state led a majority of Utahns to decide that marriage should be a way for the government to endorse all types of adult relationships. Rather, because a year ago, a federal judge mandated a new legal definition of marriage, claiming the definition was required by the U.S. Constitution.
Because of that decision Utah is now under federal court order to issue marriage licenses to same-sex couples. The judge’s rationale for the novel result has not proven to be all that significant. Many other judges have come up with their own rationalizations, often contradicting one other. It’s hard to know whether the Utah decision influenced other courts, since the soaring rhetoric many of the judges relied on to announce their decisions suggests they were on board with the result regardless of what had happened in Utah.
One precedent was set a year ago in Utah that appears to have been more influential. In the wake of the decision, and even knowing the state would appeal to higher courts, the judge put the decision into immediate effect, a decision that would be reversed weeks later by the U.S. Supreme Court. The pattern of short-circuiting the appeals process was followed in many other federal court decisions, which is arguably a legacy of Utah’s experience, though not a very encouraging one.
In the nature of the court system, last year’s decision was appealed. A panel of judges on the U.S. Court of Appeals for the 10th Circuit ruled 2-1 that Utah’s law was unconstitutional under the theory that when U.S. Supreme Court cases had previously referred to a “right to marry,” they had not meant marriage as understood at the time but instead that everyone should be able to exercise a choice as to what they wanted marriage to mean. In October of this year, the Supreme Court declined to review this case (and others from other circuits), allowing the 10th Circuit decision to go into effect.
Going forward, however, the issue is not entirely settled even in Utah. In early November, a panel of the U.S. Court of Appeals for the Sixth Circuit ruled that the U.S. Constitution allowed states to decide to retain the understanding of marriage as the union of a husband and wife. This ruling, binding on Michigan, Ohio, Kentucky and Tennessee, directly contradicts the 10th Circuit’s opinion, and a number of states have now asked the U.S. Supreme Court to resolve the conflict. If the Supreme Court sides with the Sixth Circuit, Utah may be able to enforce its marriage laws again.
Whatever ultimately happens with the legal part of the debate, this turn of events presents an important cultural opportunity. Probably because the nature of marriage (as an institution bringing together men and women in which society is primarily interested because it promotes the opportunity of children to be raised by their own mother and father) had been so uncritically accepted for so long, the wisdom of that understanding may have been forgotten — particularly under the stress of other legal changes emphasizing adult expressive individualism in marriage and family.
The ongoing marriage debate allows the virtue of the embattled wisdom to be articulated in practice and in reason. That’s the opportunity we must seize going forward.