On Tuesday, Utah became the first state to petition the Supreme Court to review a state same-sex marriage ban since the court overturned the federal Defense of Marriage Act (DOMA) last year. On Thursday, the Utahns who successfully challenged their state ban asked the court to hear the appeal, citing the importance of the issue.
I hope Utah gets its way. After all, that’s where the Supreme Court first involved itself in marriage law — back in 1878, when it held that the constitutional right of religious free exercise did not permit Mormons to practice polygamy. It would only be appropriate for the court to make its constitutional position on same-sex marriage clear in a Utah case.
In their petition, Gov. Gary Herbert and Attorney General Sean Reyes actually evoke Mormon polygamy. Advancing the view that there are competing “adult-centered” and “child-centered” views of marriage, they write, “Those who favor redefining marriage as the union of any two or more persons see the institution primarily from an adult-centered perspective.”
I don’t think Mormon polygamists past and present would go along with that proposition, not with respect to that “or more” part. In his original revelation concerning plural marriage, Joseph Smith explained the practice this way: “for they are given unto him to multiply and replenish the earth, according to my commandment, and to fulfil the promise which was given by my Father before the foundation of the world, and for their exaltation in the eternal worlds, that they may bear the souls of men; for herein is the work of my Father continued, that he may be glorified.”
I’d say that view was more child-centered than adult-centered, and more God-centered than either. Be that as it may, the petition takes its stand on the long-recognized prerogative of states to determine marriage law — a prerogative that, in fact, the court harkened to in overturning the federal DOMA.
Accordingly, Utah has long exercised its power to define marriage. To become a state, Utah had to adopt an “irrevocable” constitutional provision that “forever prohibited” polygamous marriages and made adherence to monogamous marriage (understood to be between one man and one woman) the only alternative.”
Let’s be clear about this. Utah had to adopt that irrevocable constitutional provision because the federal government wouldn’t let it put in place the kind of marriage law that the residents of the state-to-be wanted to adopt. Some prerogative.
The real legal issue here, however, is not whether states can make their own marriage law but whether the Fourteenth Amendment’s guarantee of equal protection gives the federal courts the right to intervene. That it does give the federal courts the right to do so was recognized back in 1883 when, in Pace v. State of Alabama, the court upheld Alabama’s anti-miscegenation law on the grounds that, because the law punished the white and black spouses equally, it did not run afoul of the Equal Protection Clause.
Eighty-four years later, in Loving v. State of Virginia, the court decided that state anti-miscegenation laws did in fact violate the Fourteenth Amendment. Now, in an unbroken string of decisions over the past year, lower courts have similarly held that the Fourteenth Amendment bars state anti-same-sex marriage laws. Will it be Pace all over again, or Loving?
I’m betting on Loving.