‘Unwinding’ marriages

It’s been two weeks now, since Judge Shelby issued his opinion, and gay couples all over Utah dashed over to their county clerks and were issued marriage licenses.  So far, about a thousand couples have gotten married. And every day since, the newspapers have included stories about the progress of the appeals filed by the state.

Here’s the Trib from today.  And this is from today’s Deseret News.  They’re pretty straightforward legal stories.  The state is asking Justice Sotomayor for an emergency stay on Judge Shelby’s decision.  She can grant the stay, deny it, or refer it to the rest of the Supreme Court, the 10th Circuit having punted on it.  I’m not a legal scholar, and though I’ve read both the state’s brief and the brief from James Magleby, who represents the gay couples who filed the original case, I certainly can’t say I understand them with any degree of sophistication.

But I do want to comment on one paragraph from the Trib article about the state’s appeal:

Those decisions were an “affront” to the court’s “unique role as final arbiter of the profoundly important constitutional question that it so carefully preserved in Windsor,” the state said, and could lead to an “enormous disruption” to the state and its citizens of potentially having to later “unwind” those marriages if the state prevails.

Well!  Judge Shelby’s decision was in insult, an affront, to the State of Utah’s democratic processes and to the honor and dignity of SCOTUS.  I will meet you at dawn, sir, and as offended party, insist on pistols at ten paces!  Sorry, that language grates.  For that, the state spent two million dollars on outside counsel?  But look at that final sentence. In fact, look at one word in that sentence.

Unwind.  It would be disruptive, the state suggests, to have to ‘unwind’ those marriages.

When the state applied to Judge Shelby for a stay, it suggested that the marriage licenses being issued should be seen as temporary; that they may have to be revoked.  When Utah applied to the 10th circuit, it made the same argument–those marriages might need to be undone.  Over a thousand couples have been married in the last two weeks.  Now the state, once again, is threatening to undo them.  To ‘unwind’ a thousand marriages.

Looking at this from the state’s perspective, I can see why the Governor and legislators are ‘affronted.’  The state had a referendum on same sex marriage, and amended the state constitution to prohibit it.  Opposition to gay marriage has widespread public support.  Where does this Judge Shelby character get off, just unilaterally deciding that gay people can get married in Utah?  Judicial activism bites!

I’m also sure that the governor understands, in the abstract, that democratic processes are irrelevant when it comes to basic civil rights.  If it can be demonstrated that a ban on gay marriage violates the rights of gay citizens (which is what Judge Shelby ruled), then it doesn’t matter how bitterly Utahns disagree, or how big the majority it is that opposes it.  At the same time, if gay marriage had come to Utah via democratic processes, it would carry a presumption of legitimacy that this decision lacks.  I get that.  I understand that a lot of people in Utah are upset about it.  We’re perilously close to Roe v. Wade territory here, where the fact that abortion was legalized through a court decision means that a sizeable minority of Americans do not and never will regard it as moral or legitimate.  I’ll grant that, my conservative friends, if you’ll admit this: the stakes are much lower here.  If my neighbors marry, and I don’t approve, I do have to admit that their marriage doesn’t actually affect me at all. It’s really very difficult to see how the state is adversely impacted by Judge Shelby’s decision.  At all.

But . . . ‘unwind’?  Really?  That’s what you want to do?

May I suggest that this would be an exceedingly unwise course of action?  By all means, let the state appeal.  Let this go to Justice Sotomayor, or to the 10th Circuit, or even to SCOTUS.  Let the debate continue, in and our of our fair state.  But let me, in the strongest possible terms, urge you not to consider the marriages that have taken place in the last two weeks illegitimate.

What a nightmare scenario.  Imagine it, the state just declaring that a thousand married couples suddenly aren’t married anymore.  Two thousand people, who think they’re married, told ‘no.’  Sorry.  You’re not.  You don’t count as married.  You can’t file taxes as a couple.  You can’t, as a couple, begin an adoption process.  You’re not married anymore.  Your marriage certificate, neatly and proudly framed and on display in your home, is now worthless, meaningless.  Because you’re gay, your wedding is invalidated.  By the power of the state.

Governor Herbert.  Let me address you on this point. Here’s why this is a very very very bad idea.

First, it would be a public relations nightmare.  The pro-marriage-equality optics of the last two weeks have been off the charts.  How many photos, how many news stories, how many interviews in national publications have showed happy people smiling and crying and holding hands and kissing and embracing, overcome with joy?  There’s a reason people like going to weddings–it’s wonderful to see happy people commit their lives to each other. You know the part in weddings when the pastor says ‘if anyone opposes this union, let him speak now or forever hold his peace?’  Have you ever seen anyone stand up and do that?  I never have.  Well, that’d be you; the unwelcome guest, the naysayer.  Right now, the conservative opposition-to-gay-marriage crowd does not have a face, a spokesperson, which also means that the pro-gay-marriage crowd doesn’t have a villain.  You would become that villain.  Gary Herbert would become the face of a frankly pretty unpopular movement. You’d be the guy.

Second, that decision would have economic ramifications.  You know as well as I do that there are lots of reasons for companies to move to Utah, or open offices here, or invest here.  Utah has spectacular scenery, great recreational opportunities (including world-class skiing), improving infrastructure, great cultural offerings (a symphony, dance companies, a film festival, great theatre). But companies increasingly have openly gay employees.  How long would it take for Utah’s national reputation to shift from ‘good place to do business’ to ‘jack-booted thugs ripping up people’s marriage certificates?’

Third, how would this work logistically?  Would you just declare all marriage licenses issued to same sex couples invalid?  How long before the protests started?  How long before couples start handcuffing themselves to county clerks’ offices, holding their marriage certificates?  You gonna order the arrest of people protesting your decision to end their marriages?  Have you really thought this through?

And what’s the upside?  What exactly does the state think it’s going to gain?  Right now, it’s all abstract; you’re ‘defending traditional marriage.’  Whatever that means.  But do you really think it makes sense to accomplish that by telling people who have committed their lives together, and who think they have certification from the state sealing that commitment, that they’re going to have tear up their marriage licenses?  Or you’ll send in cops to tear them up?  Seriously–would you go that far?

Personally, I think the very suggestion that you’re going to start ‘unwinding’ marriages is likely to lose you this case, ultimately.  The very idea of it is pretty terrifying. I don’t have any idea what the 10th circuit will decide a few months from now, and I don’t have any idea what SCOTUS will do next week, but I do think that any suggestion of invalidating marriages is a legal loser.

Don’t do this.  Drop that part of your appeal.  Stop thinking in those terms.  A thousand couples have gotten married the last two weeks.  Two thousand citizens of the state of Utah.  That’s happened.  Live with it.  I don’t see that you have much choice.





5 thoughts on “‘Unwinding’ marriages

  1. starbugary

    Pretty much everything that the Utah AG’s office has done with this case has been wrong. I know they aren’t intentionally trying to loose, at least I don’t think so, but you are right that argument is the wrong one if they hope to win. Frankly the more I think about this the more I feel like the players are all in the right place, it is meant to unfold and happen this way. Much like “The Loving Story”, the case Loving vs. Virginia, all of the players lined up from the fresh out of law school lawyers representing the Lovings to the Older and more racist judges on the Virginia Court, even the sitting SCOTUS justices at the time, everyone seemed perfectly placed. It just seemed meant to be and like it wasn’t an accident. We will see what happens but I agree with you that is not the right argument for the state to make.

  2. kristina

    i would like to add that not only would he be “that guy” who is the naysayer, but the Governor would also be the one who would put same-sex marriage in the same terms as polygamy. but not in a “the sky is falling and now polygamy and prostitution can be legal!” frame of reference but one that is without any comprehension of its own irony. many of my conservative friends and family members have lamented about the time when utah had to agree that marriage was between one man and just one woman in order to become a state in the union, under threat of Johnson’s army; “and now the federal government has come and shaken things up again! like, make up your mind!” here we have another majority, a different majority from before, has again pushed their own values (however right or wrong said values may be) on another minority group. the end of polygamy was a nightmare for the members in the Church (and like me, whose ancestors actually practiced it) as all of these 2nd, 3rd, 4th, etc marriages had to “unwind.” my father told me a story how a great aunt of his who was born well into the next century, after the theological and constitutional ban on polygamy, after it was declared a felonious crime by the government, after these marriages were supposed to not exist anymore, after he was no longer allowed to be even co-habitate with these wives; and thus she had to be hid and moved from family to family in those uncertain years. she was never raised by her own mother or father, and in fact, never even knew them until she was able to reconnect again as a married woman. current utah politics would be doing this kind of thing in its “unwinding” to the marriages that have taken place and will continue to take place until, and if, it is declared illegal to do so and be so considered “unmarried.” irony.

  3. babaroni

    Well said, MI. Based upon what happened in CA in the aftermath of Prop 8, I don’t think the state of Utah has the legal authority to void marriages performed validly under the state laws, even if the law changes at some point. If they were legal at the time they were performed, they must be allowed to stand, even if they are only grandfathered in.

    And then this presents the basis for further constitutional challenges if a ban is re-imposed, because a couple who is legally married today, should they decide to divorce next week, and then change their minds a year from now and want to re-marry the same person, would be unable to do so. So something that is legal for an opposite-sex couple — the right to divorce, and then to re-marry the person they have divorced, would be illegal for the same-sex couple. Since Utah doesn’t have the same Equal Treatment protection in its constitution for gay people that CA has, that might not be as big of an issue, though.

    But the forcible annulling of legally performed civil marriages *is* a *huge* deal, and would probably trigger a federal case which would likely find in favor of the married couples.


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