A possible Supreme Court twist in Utah’s marriage case

800px-United_states_supreme_court_buildingLast week, Utah asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the 10th Circuit that Utah’s marriage amendment (approved by the Legislature and two-thirds of voters in 2004) is unconstitutional because the 14th Amendment (ratified in 1868) requires all states to redefine marriage to include same-sex couples. The plaintiffs in the lawsuit plan to support the request.

If all goes as intended, the Supreme Court would consider the request (and similar ones from Oklahoma and Virginia) at the outset of its October term.

Much of the press and activist commentaries are treating a judicial redefinition of marriage for all 50 states as a foregone conclusion, but that analysis misses a very interesting twist in the legal arguments the court will hear that could dramatically impact the result.

In last summer’s Supreme Court decision (United States v. Windsor) invalidating the federal Defense of Marriage Act, the court characterized that law as unique in that it involved a federal definition of marriage in contrast to the typical pattern of federal laws deferring to state definitions in the realm of domestic relations. Given that, and the court’s belief that the law was motivated by “animus” on the part of members of Congress, the 2013 decision may be an anomaly.

Why? Because the cases currently being considered by the court are quite different.

For example, the 10th Circuit decision on Utah’s marriage law finds the law was not motivated by animus. The panel was even more emphatic in rejecting the claim in the Oklahoma case, with a long concurring opinion addressed to the accusation. The 4th Circuit does mention animus only in passing in describing another court decision.

This is not surprising since (1) it is hard to imagine how the a court would discern the motivations of voters, particularly large majorities, with any degree of certainty and (2) the idea that a choice merely to retain the legal definition of marriage (one that has prevailed virtually universally through time) is somehow hateful is a stretch.

The difference, then, from the DOMA decision is stark. The laws being challenged in the cases seeking Supreme Court review are state, (the level of government the Supreme Court has recognized as the appropriate one for enacting domestic relations law) not federal, and were not motivated by animus.

How, then, did the 4th and 10th Circuit conclude these state marriage laws were unconstitutional if they were not following the reasoning of the Windsor decision? They said that same-sex marriage was a fundamental right protected by the Constitution. Not, of course, a fundamental right like free speech, exercise of religion, or the right to bear arms that are mentioned in the Constitution. Rather, an unwritten right that the courts themselves designate.

Here, the courts seem to be leading with their chins. The Supreme Court has made clear that to be regarded as a fundamental right, the asserted right has to be identified precisely (in the leading case, the court rejected the idea of a right to die with dignity, instead saying the asserted right was the right to have a physician assist an individual in committing suicide), and that precise right has to be “deeply rooted in this Nation’s history and tradition.”

This is obviously a tall order for a legal concept that has existed in the United States for only a decade and internationally only since 2001. How do the courts get around this problem? They note that the Supreme Court has recognized in passing a right to marry and applied the right to invalidate a law three times. When the Supreme Court noted this right (the last right-to-marry case was in 1987) it did not specify that the right did not apply to same-sex couples, so the courts say it must apply.

That’s obviously a stretch given that when the Supreme Court mentioned a right to marry, the term always meant the union of a husband and wife.

The logic of these decisions is that the Supreme Court’s silence on a question that was inconceivable when it issued its opinions creates a positive obligation for the states to answer the question in a way that could not have been contemplated when the relevant Constitutional provision was enacted.

If Constitutional mandates can be created by silence, the only limit on what the Constitution means would be the creativity and daring of the courts.

There is good reason the Supreme Court will want to rein in that kind of judicial lawmaking.

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