Sanity and social responsibility prevail

When I first wrote about Judge Richard Shelby's ruling that Amendment 3 to the Utah State Constitution violated the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution, among other things, I called his ruling culturally obtuse and socially irresponsible (see "Year-end socio-political commentary"). I stand by those observations. The social irresponsibility was made explicitly known when Shelby insisted his striking down of the state constitutional amendment go into effect immediately and was compounded even further when he refused to grant an injunction requested by the State of Utah so that the status quo ante would prevail until the state could appeal his ruling to the Tenth Circuit Court of Appeals in Denver. In my view, there is Shelby's ruling in-and-of-itself and then there is the manner in which he more-or-less insisted be put into effect right away.

His insistence and subsequent refusal resulted in the immediate issuance of marriage licenses to many same-sex couples, which continued until today, when the Supreme Court unanimously issued an injunction, clearing the way for the case to be taken up by the Tenth Circuit Court of Appeals.

The State of Utah's request went to Justice Sotomayor, who, wisely, I believe, did not grant the injunction all by herself, which she could have done, but sought the input of the other Supreme Court Justices. The stay was issued with none of the 9 justices dissenting. It reads as follows:

(ORDER LIST: 571 U.S.)

MONDAY, JANUARY 6, 2014

ORDER IN PENDING CASE

13A687 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Amendment 3 to the Utah State Constitution added Article 1 to Section 29 and states:

1. Marriage consists only of the legal union between a man and a woman.

2. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect

The amendment was approved by essentially two-thirds (65.86%) of voters in the November 2004 general election.

Whichever way the Tenth Circuit Court of Appeals rules, the decision will almost certainly be appealed to the Supreme Court. It will then remain to be seen whether the Supreme Court will take up the case, or allow the lower court ruling to stand. It is difficult for me to imagine that a case with such huge constitutional implications will not be ruled on by the Supreme Court, but who knows? The nation's highest court has shown a great of reticence in taking up this incendiary issue, which has far-reaching implications for the state-of-the-union. Their ruling in United States vs. Windsor (see "Marriage in the U.S.: an opportunity for witness") was quite cautious.