For a little over two weeks, same-sex couples in one of America’s most conservative states could legally wed. Now, two weeks after a federal district court judge ruled that Utah’s ban on same-sex marriage was unconstitutional, the Supreme Court of the United States granted Utah’s request for a stay on same-sex marriages. As supporters and opponent of the state ban gear up for an appeal to the 10th Circuit, perhaps an overview of some of this story’s more bizarre aspects is needed.
One of the most interesting aspects of these events is the judge who issued the initial ruling or, more specifically, how those who once touted him are treating him now. Judge Robert J. Shelby is a Utah native who was praised by Utah conservatives – including Tea Party member Sen. Mike Lee – when President Obama nominated him for his present post. In fact, it was Republican Sen. Orrin Hatch who recommended Shelby for nomination. Unlike so many of the Obama’s judicial nominees, Shelby faced no serious Republican opposition and was confirmed in September 2012. But that was 2012. After Shelby’s December 20 ruling finding Utah’s ban on same-sex marriage unconstitutional, Utah Gov. Gary Herbert claimed that Shelby was an “activist judge” who was using his power to override the will of the people.
Another unique part of this story is that same-sex couples were able to immediately marry when the decision was handed down. Unlike most other states that have legalized same-sex marriages by either judicial decision or legislative act, same-sex marriages in Utah were permitted to commence immediately when Shelby – and subsequently the 10th Circuit – denied the state’s request for a stay. The result: an estimated 1,000 same-sex weddings were performed during the 17 days between Shelby’s decision and the Supreme Court’s stay.
This leads us to the current showdown between state and federal government. On January 12, Attorney General Eric Holder announced that the marriages performed during the 17 day window were valid for purposes of federal law. Governor Herbert responded that while the state would comply in providing the newly-married same-sex couples with federal services through state agencies, it would not extend state benefits until the 10th circuit has ruled on the issue. Both supporters and opponents of Utah’s now-uncertain same-sex marriage ban would likely agree that this state-national discrepancy is awkward in the extreme. While the political posturing continues, same-sex newlyweds in Utah are caught in the middle.
Finally, we come to the state’s arguments to the Supreme Court; they must be read to be believed. In its request for a stay, the state ditched the “responsible procreation” argument that it tried out when requesting a stay from the 10th Circuit; instead, Utah argued that its ban on same-sex marriage promotes “optimal parenting.” While surely this phrase will turn out to be as vague as it is euphemistic, I hurry on so that I may address the state’s second, slightly more insane argument: that the ban is beneficial because it promotes “gender diversity” in marriages and parenting. This is quite possibly the most disingenuous invocation of gender diversity on record, as evidenced by the notion of diversity being forcibly applied to families in any other context. Just as no one would agree that marriage should limited to interracial couples in the name of racial diversity, no one honestly believes that diversity is the real reason anyone wants to see this ban upheld.
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