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Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant.
NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website.
In a curious twist of fate, US Supreme Court Justice Antonin Scalia may have contributed to a future US Supreme Court decision overturning all state laws that ban same sex marriage.
Make no mistake, Justice Scalia is no supporter of same sex marriage. However in his dissent from one of the same sex marriage victories at the Supreme Court last June he said "The view that this court (meaning the US Supreme Court) will take of state prohibition of same sex marriage is indicated beyond mistaking by today’s opinion.
Neither of the decisions announced last June dealt directly with the question of whether or not state laws banning same sex marriage violate the US constitution. But Justice Scalia says that, since the majority of the Supreme Court supported same sex marriage in the two cases decided in June, they are likely to rule that any bans on same sex marriage are unconstitutional, when and if such a question is brought before them.
Recently a federal judge (Robert Shelby) in Utah quoted Justice Scalia’s statement and used it as a basis for overturning Utah’s ban on the recognition of same sex marriage in that state. In essence the judge was saying, if Justice Scalia thinks the majority of the court would overturn bans on same sex marriage, then he (Judge Shelby) aught to overturn Utah’s ban on such marriages.
Usually, in such cases, the federal judge will stay his own decision. In other words he would not let his or her decision go into effect until all appeals of the decision have been decided. But, apparently, Judge Shelby thought his decision would not be overturned, so he refused to stay the decision. Those who oppose same sex marriage went to an appeals court asking it to stay Judge Shelby’s decision. But the appeals court also refused to do that. So many same sex couples continue to get married in Utah.
This creates a sticky situation for the US Supreme Court. They may be forced to take up this case and decide whether or not all laws banning same sex marriage violate the US Constitution.
Many authorities believe the Supreme Court Justices would like to hold off making that decision for at least a few years. It has been reported for example, that Justice Ruth Bader Ginsberg has wished that the Roe v Wade
decision, allowing abortion under certain circumstances, would have been delayed a few years.
Justice Ginsberg definitely supports a woman’s right to choose. But she reportedly believes that the public had not come around to supporting that right at the time of the Roe v Wade
decision. She apparently thinks that, if more education had occurred before the Roe v Wade
decision, and more people were accepting of a woman’s right to choose, then the decision might not have created the fire storm that continues to this day.
More and more people are accepting the concept of same sex marriage. Thus, the Supreme Court Justices may be hoping to put off a final decision on the issue until most people in the country can accept the concept.
But the Utah court decision deals directly with the question, and the State of Utah has appealed the decision to the Supreme Court. Thus, the court may not be able to avoid dealing with it soon.