In Lewis Carroll’s Alice in Wonderland, Alice exclaims how some events made her “curiouser and curiouser.” So was I when, on this past Monday, the Feast of the Epiphany, the Supreme Court might have had its own epiphany. But then, perhaps not. The Supreme Court issued a permanent injunction on a ruling by U.S. District Court Judge Robert J. Shelby’s decision of December 20, 2013, overturning Utah’s Amendment 3, which stated that marriage in Utah is the union of one man and one woman. Many Americans were stunned to learn that Judge Shelby found Amendment 3 violated the 14th Amendment constitutional guarantee of due process and equal protection. (Really? In Utah?) Amendment 3 was enacted in 2004 with approval of 66 percent of the voters. Following Judge Shelby’s decision, Utah state officials had sought a stay in the case until the 10th Circuit Court of Appeals, based in Denver, decided the lawsuit on its merits. However, Judge Shelby, recently appointed to the Utah federal court by Mr. Obama in late September 2012, would have none of this, and denied a stay on his ruling. Following Judge Shelby’s decision, the 10th Circuit Appellate Court also denied Utah officials’ request to delay the decision from taking effect. As a result, Utah state officials turned to the Supreme Court for help.
So, why did I find the Supreme Court’s decision to be curious? It was the liberal Associate Justice Sonia Sotomayor, who handles appeals from the 10th Circuit, who, after receiving Utah’s application in the case, referred it to the full Supreme Court. Apparently without dissent, the Supreme Court issued its stay. The stay is simply stated, and is available here . Practically this means that Utah’s Amendment 3 is back in force, and homosexual marriages can no longer be legally performed in Utah. This case is significant because Utah, and 28 other states, have constitutional amendments stating that marriage is the union of one man and one woman in Utah. (Four other states have the same legal result through statute.) If the Utah Amendment is ultimately struck down, it would mean the same fate for the rest of state constitutional amendments defining traditional marriage. The status of approximately 1,000 homosexual “marriages” performed in Utah since Judge Shelby’s careless December 20 ruling is not immediately clear, but at the very least, those unions are now in legal limbo.
Although Mr. Obama nominated Judge Shelby, both Utah Senators Orrin Hatch and Mike Lee gave their approval. Senator Lee even called him “pre-eminently qualified.” Not that I would ever want to judge a book by its cover, but Judge Shelby apparently served in U.S. Special Forces and, according to the New York Times, is a registered Republican. So this also contributes to my curious state of mind as he does not seem to fit my perspective of a progressive judicial activist. However, were I even mildly cynical, I could think that Judge Shelby’s refusal to stay his own order might be to create a fait accompli. After all, if after 1,000 or more couples are “married,” then it is hard to put that genie back into the bottle.
For those of us who oppose homosexual “marriage,” I think that we should not be too excited about the Supreme Court’s decision. It could be good news in that the Supreme Court could be upholding a state’s right to establish marriage as the union of one man and one woman. However, it may also indicate that the Supreme Court has recognized what the rule of law normally requires. Typically, stays of decisions that invalidate state laws are granted to give the state an opportunity to appeal the decision. The lower courts in this case refused to do so. Consequently, the Supreme Court’s issuance of a stay is the typical result, regardless of one’s belief about homosexual “marriage.” In last June’s two decisions regarding homosexual “marriage,” the Supreme Court found the federal Defense of Marriage Act to be unconstitutional. Continuing the curiouser theme, the Supreme Court also declined to rule on the merits of California’s constitutional ban on homosexual “marriage,” yet decided that case on procedural grounds. As a result, the Supreme Court left in place a lower-court ruling that invalidated California’s constitutional ban on homosexual “marriage.”
Nevertheless, please pray for great wisdom and prudence for the 10th Court of Appeals and the Supreme Court, and most importantly, for a great revival in our nation. The arriviste Judge Shelby single-handedly altered Utah’s family law, a core function of state government, without the benefit of trial and without a direct precedent on this issue, and ignored the public policy decision of an overwhelming number of Utah voters. Just imagine what an overbearing and oppressive federal government, bolstered by activist judges, can do to you and your family, and to your sincerely-held Christian beliefs.