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Half-Measures: How Long Before Marriage Returns to SCOTUS?

By William Peacock, Esq. on December 23, 2013 | Last updated on March 21, 2019

Judicial restraint. It's a concept that makes us all feel warm and fuzzy. Judges don't go too far, or reach unnecessary conclusions in a case, because that's the way it should be, right? Repeat after me: judicial activism is bad. Narrow holdings are good.

Except, imagine where marriage equality would be if the Court just said what it seemed to want to say. (The parties would certainly save on filing fees.)

When Lawrence v. Texas was decided, and laws criminalizing consensual sodomy were found to be unconstitutional, Justice Scalia famously warned that bigamy, incest, bestiality, and gay marriage would follow. In Windsor, he warned that the Court's opinion, striking down the definition of marriage found in the federal Defense of Marriage Act, would lead to the demise of state laws prohibiting gay marriage.

As FindLaw's Strategist blog notes, Scalia's sarcastic treatment of the Court's opinion was quoted at length, and used for the opposite effect intended, in a federal district court opinion on Friday. That opinion struck down Utah's ban on gay marriage. And in a separate case last week in Utah, a key part of the state's anti-polygamy law was struck down.

Marriage seems to be headed back to the Court -- but when?

The Polygamy Case

In a case that pitted Kody Brown, a reality television star (from the TLC show "Sister Wives") against decades-old court precedent, the polygamist won earlier this month. The U.S. District Court for the District of Utah struck down part of a state law that allowed prosecution for the appearance of polygamy, even when the cohabitating polyamorous parties were not seeking legal recognition, reports CNN.

The court did not extend legal recognition to polygamous marriages, but even with the limited nature of the holding, it's sure to be appealed.

The Gay Marriage Case(s)

As we mentioned, in the same courthouse, days later, a different judge struck down Utah's ban on gay marriage, holding that the U.S. Constitution trumped state law, and that Utah's law had no rational basis for its denial of equal protection and due process to same-sex couples.

The fallout has been immediate and predictable. County clerks' offices have been flooded with marriage license applicants, with some offices closing, some refusing to grant same-sex marriage licenses, and many complying with the court's ruling, reports The Salt Lake Tribune. The state sought a stay on the decision from Judge Robert Shelby (denied this morning), and have thrice (in three days) filed for a stay with the Tenth Circuit (two of which were denied on procedural grounds).

Also this morning, Ohio federal Judge Timothy Black, using very broad equal protection language, blasted the state for not recognizing legal marriages from other states. Yet Black issued a narrow holding limited to listing a same-sex spouse on one's death certificate. The opinion is expected to lead to more litigation over a more general right to same-sex marriage, reports The Associated Press.

The Slippery Slope to SCOTUS?

Judge Black noted Scalia's prescience. Judge Shelby quoted him. Countless other state and federal courts, and legislatures, have either decided the issue, or have it pending on the docket. Some, like Scalia in Lawrence and Windsor, would argue that these are all the "slippery slope" results of overbroad court opinions. Others say "yay," and wish that the process would yield nationwide marital equality sooner.

Either way, the process seems to be leading back to the nation's High Court. And the argument for narrow opinions seems self-evident. Both Lawrence and Windsor were intended to be narrow, yet now have been extended to issues like polygamy in Utah and same-sex marriage litigation in various states. Imagine the lengths those opinions would stretch had the Court not practiced self-restraint.

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