The good news for supporters of equality is that a federal court in Utah held Friday that marriage discrimination against same-sex couples violates the Constitution. The bad news is that this case has a long way to go before gay couples in Utah can be sure that they will have full access to the Constitution’s promise of equality.
Currently, Utah couples are racing to marry before Judge Robert Shelby, who handed down Friday’s decision, can complete a hearing on whether that decision should be stayed. Realistically, even if Shelby allows his order to remain in effect, it is still likely to be stayed by either the conservative-leaning United States Court of Appeals for the Tenth Circuit or by the Supreme Court. Recall that the Ninth Circuit stayed a lower court order striking California’s anti-gay Proposition 8, even though a panel of that Court ultimately declared California’s ban on marriage equality unconstitutional.
Ultimately, a decision permanently extending the blessings of liberty to same-sex couples in Utah will have to come from the Supreme Court. Here are 5 different ways that the Supreme Court could handle this issue, arranged from the most expansive possible ruling for gay rights to the most destructive to equality:
- Marriage Equality For All, Plus Heightened Constitutional Scrutiny of All Anti-Gay Laws: A looming question in every gay rights case is whether all laws that engage in anti-gay discrimination must be subjected to “heightened scrutiny” by the courts. If the Supreme Court holds that they are subject to such scrutiny, it would not only lead to marriage equality, it would also make it very difficult for any anti-gay law to stand anywhere in the country. Both the New Mexico Supreme Court and the United States Court of Appeals for the Second Circuit have held that anti-gay laws are subject to heightened scrutiny.
- Marriage Equality For All, Punt On Heightened Scrutiny: The Supreme Court has been reluctant to weigh in on the question of whether anti-gay laws are subject to heightened constitutional skepticism, repeatedly handing down pro-gay decisions that dodge this important question. It’s reasonably likely that they would do so again if confronted with another marriage equality case. Indeed, Judge Shelby’s decision offers them a roadmap leading them to this outcome — they could hold that the right to marry is itself protected by the Constitution without resolving the fate of other anti-gay laws.
- Punt On Utah, But Anti-Gay States Have To Recognize Other States’ Marriages: Even the Court’s progressive wing has indicated that it would prefer to bring about marriage equality in incremental steps. Justice Ruth Bader Ginsburg criticized Roe v. Wade for moving “too far, too fast” during the lead up to the Court’s last marriage equality decision, and Justice Sonia Sotomayor probed for a way to limit a decision striking Proposition 8 to just California. The Utah case presents the broad question of whether the Constitution requires marriage equality for all, but the justices may try to put off this case to resolve a narrower question first. A likely possibility is that they would take the Obergefell case, a case brought by a man and his dying spouse seeking to have their Maryland marriage recognized by the state of Ohio. Should the Supreme Court side with this couple, it would allow Utah couples to travel across state lines to get married — and would require Utah to honor those marriages — without necessarily allowing them to get married in their home state.
- Punt On Utah, But Strike State Constitutional Bans On Marriage Equality: A Texas case concerning whether Houston can extend employee benefits to the same-sex spouses of city employees could present the justices with another incremental step towards full marriage equality. This case would allow the justices to abolish state constitutional amendments prohibiting marriage equality or other marital benefits from being extended to same-sex couples, while still permitting states like Texas to engage in discrimination if their legislature wished to do so.
- A Loss: Finally, it is important to remember that this Supreme Court is very conservative — so there is no guarantee that it will continue to hand down pro-gay decisions. Indeed, if a conservative justice replaces one of the five members of the Court who typically support gay rights, all the progress LGBT Americans have achieved in the Supreme Court could be rolled back in a single opinion.