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.