If It Can Happen In Utah ...

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There's a pretty good recap of the court ruling in the Utah same-sex marriage case from The New Yorker. The state has made an emergency appeal to the Supreme Court to stay the ruling, but marriages have already taken place.

The Utah situation has been novel in several respects. First of all, the decision was not widely anticipated. Shelby based it on the Supreme Court’s ruling, this summer, in United States v. Windsor, which struck down the federal Defense of Marriage Act on the grounds that gay Americans were entitled to equal “dignity” and that the Constitution protected their “moral and sexual choices.” It’s hard to know if Utah officials had any warning signs, but if they did, they surely should have been better prepared. They could, for example, have asked the judge in advance to delay implementation of any possible ruling pending appeal. That they did not do so seems to have handicapped them: since the weddings have already begun, the state can’t really claim to be seeking to preserve the status quo by stopping them.

That so many gay and lesbian Utah citizens rushed to get married also rather dramatically demonstrated that what this case (and others like it) is really about is allowing citizens to express love and commitment to each other in an open and free society. The image of statewide elected officials hurrying to court for an emergency ruling to stop acts of love and commitment, as if they were somehow threats to public order, speaks volumes.

The last line strikes a pretty strong chord. Can anybody legitimately make an argument that same-sex marriage is in any way harmful to the Republic?

Of course, in Tennessee, we shut that down in 2006 with the passage of the Tennessee Marriage Protection Act, not only defining marriage, but refusing to recognize marriages performed elsewhere.

From TCA ...

The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

The Utah constitutional amendment has similar language:

1. Marriage consists only of the legal union between a man and a woman.
2. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

If the Supreme Court refuses to grant the stay, can we expect the same thing in Tennessee? The October challenge to the state's constitution is now in federal court here in Nashville and, unsurprisingly, the Utah verdict (and a similar ruling in Ohio) was filed with the court by the plaintiffs last week.

What's telling is that the latest amicus brief filed by the Family Action Council of Tennessee is a defense of federalism, not a defense of traditional marriage.

For this Court to rule that the United States Constitution mandates that Tennessee redefine marriage or recognize those marriages that conflict with its clear public policy on the question would improperly federalize a question that is undoubtedly within the “residuum” of power reserved to the states. The Supreme Court has noted that “[o]ne of the principal areas in which [it] has customarily declined to intervene is the realm of domestic relations,” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004), and to intervene in Tennessee’s regulation of marriage would “thrust the Federal Judiciary into an area previously left to state courts and legislatures,” Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 73 n.4 (2009). It would also, absent any textual or precedential direction to do so, create “a federal intrusion on state power” and “disrupt[] the federal balance.” Windsor, 133 S. Ct. at 2692.

Essentially, the argument is that Tennessee has the right to discriminate. We'll see how well that holds up. Federalism claims about the ability to regulate marriage are beginning to run into equal protection claims, and as much as some in Tennessee wish they could nullify federal power, in this case, the ruling in Utah may just be the writing on the wall.

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