Legal and Moral Dimensions of Utah's Same-Sex Marriage Fight

Richard Epstein

The controversies over same-sex marriage continue to take unexpected twists and turns—the latest coming from Utah. The situation on the ground there is tangled at best. The story starts with a decision by a federal district court judge, Robert J. Shelby, that invalidated the state’s same-sex marriage ban, which had been approved by Utah voters. Shelby then decided that he would not stay this controversial ruling until the question was clarified by either the Court of Appeals for the Tenth Circuit or even the Supreme Court. That was a bad decision, with predictable consequences.  

All too conscious of the delicate situation, at least 1,300 couples applied for and received marriage licenses within the state. They are now all in limbo. Several days later, Justice Sonia Sotomayor issued the stay order that Judge Selby refused to grant, just as Utah governor Gary Herbert announced that the state wouldn't recognize these unions after all—at least until required to do so by a higher authority.These legal maneuvers put the status of these same-sex unions in limbo.

Unfortunately, matters have become only more complicated with the announcement today by Attorney General Eric Holder that the federal government will treat these marriages as legal for the purpose of all federal benefits programs. Thus, the question of the hour is what to make of his last-minute intervention.

On this issue, it is instructive to hearken back to the somewhat twisted logic of the Supreme Court’s June, 2013 decision in United States v. Windsor, which struck down those portions of the Defense of Marriage Act that supplied a federal definition of marriage for the purpose of administering federal programs. In a decision that I regard as technically wanting, Justice Kennedy held that the definition of marriage was an inherent state function, so that the federal government had to follow the lead of the states. Since New York, in Windsor, had been deemed to have recognized same-sex marriages, the federal government would have to do so as well for New York citizens, so that Ms. Windsor could take advantage of the marital deduction built into the estate tax.

Windsor created a peculiar inversion of the relationship between federal and state power, one that stands in stark contrast to the usual view that state laws have to yield to federal laws when the two are in conflict. The point seems to have extra force in this area because the federal definitions were only directed to the operation of federal programs, of which the estate tax was only one. It is therefore something of a temporizing device to limit the effect of DOMA in this way without deciding that same-sex marriages must be recognized as a matter of federal constitutional law.

In the aftermath of Windsor, it became clear that this exotic federalism argument would not last.  The federal government has an interest in the uniform application of its laws, so, within days, it announced that it would decouple federal benefits from state law to the extent that it worked to the benefit of same-sex couples. That is exactly the position that Holder took on the Utah situation, treating the issue as one of equal protection, without the slightest reference to the peculiar doctrinal status of Windsor, which ducked the equal protection issue that Holder is now treating as a settled part of constitutional law.

What is one to make of all this mess? On the merits of same-sex marriage, I think that the time has come for the opponents of the practice to throw in the towel insofar as they wish to resist state recognition of these marriages. The tides are running to too strong.  It is, moreover, not just a question of political will. It is also the simple libertarian point that couples should be free to choose their own relationships without state interference. So long, therefore, as the state is the only party that can issue marriage licenses, it has to do so for all couples on equal terms—at least as a normative matter. 

By the same token, it should be clear that the principle of freedom of association cuts in the opposite direction, so that no grand anti-discrimination norm should be ever be invoked to force private churches to recognize these marriages if they are inconsistent with the institutions' own belief systems. Parity of association is not the same as domination of other private institutions.

There is also the legal side of this. Holder clearly went far beyond what the law requires to implement Windsor. This issue is clearly not a matter of administrative discretion. DOMA still remains good law under Windsor with respect to same-sex couples in states that do not recognize same-sex marriage. They are not allowed to receive federal benefits under that law.

We have here an all-too-common situation with the Obama administration; one in which the obligation to “take care” that the laws be faithfully executed is transformed into a different proposition: implement that version of the law that meets your own moral views of what counts as right conduct.  

The Obama administration specializes in executive nullification of existing laws. It would be interesting to ask whether any private party given standing could sue the government on the ground that Holder has, once again, exceeded his powers. It's not clear what the answer would be. What is clear, however, is that misreading Windsor is not a useful contribution to the current overheated debate on same-sex marriages.