Last 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. Read more