The Supreme Court's decision on Monday morning to temporarily stay court-ordered same-sex marriages in Utah pending an appeal creates the opportunity for a full vetting of the challenging constitutional and legal issues involved. We welcome this ruling, issued without dissent, as a recognition of the gravity of what is at stake and the vital importance of proper process when considering major social change.
Under our system of federal constitutional government, the role and duty of the federal judiciary is to say what the law is, not what it thinks it should be.
Writing in defense of the ratification of the U.S. Constitution, Alexander Hamilton argued that the federal judiciary "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Hamilton observed that the courts, although independent, have neither the power of the sword or the purse and are bounded by a Constitution of limited powers.
And observers of the courts have long noted that their very legitimacy depends upon the careful exercise of the power to interpret and apply our laws. Consequently, something seemed amiss when the 10th U.S. District Court brusquely struck down a popularly enacted amendment to Utah's Constitution.
Many were stunned that one appointed judge could single-handedly alter state family law, long considered a core function of state government, without the benefit of a trial and without direct precedent on the issue. Others were concerned that although it was well within the inherent powers of that court to stay its own creative decision pending more certain resolution on appeal, that the order went forward, creating enormous expectations for same-sex couples who obtained licenses under the court’s injunction.
The Supreme Court’s willingness to step in and halt these court-ordered same-sex marriages in Utah provides the time and space necessary for a full and open consideration of the weighty issues involved in how states choose to define marriage. The case will now go to a panel of three judges on the 10th U.S. Circuit Court of Appeals.
Monday's action demonstrates the seriousness with which the Supreme Court acts on an issue that will impact our nation's future generations. It's unlikely that the Supreme Court wanted to have to consider issuing stays against other federal trial court judges, in other states, that might similarly experiment with imposing same-sex marriage elsewhere.
This time and space is a blessing for all sides on this issue. It gives those in Utah who support the traditional family the opportunity to make the considered case to a panel of federal judges, and to the court of public opinion, that there is no discrimination in a state's rational decision to favor the benefits of gender complementarity in enacting marriage laws. And should the state’s arguments not prevail, it would bring resolute certainty to the marriages ordered by this judicial process.
We believe that there are ways to ensure equality under the law for all men and for all women, even as Utah appropriately insists that marriage consist of a husband and a wife. This definitional choice by the state's electorate and Legislature provides our society with the aspirational goal, reinforced by moral teaching, by social scientists and by family scholars, that children have greater opportunities when they are raised by a mother and a father.
For the nation as a whole, judges throughout the United States are now on notice that they must proceed prudently when dealing with a matter so sensitive and so fundamental.
It is entirely possible that the Supreme Court will return to the ruling that ultimately flows out of the 10th Circuit on appeal.
And if the judges and justices involved in these processes refer to core constitutional principles they will have to acknowledge that our federal system permits the states to chart their own roadmap as they pass laws most beneficial in matters of marriage and family life absent some novel recognition of a previously unrecognized, unenumerated right or some newly fashioned doctrine of anti-discrimination.
We appreciate the pause afforded by Monday’s ruling that now allows for a thoughtful, reasoned and respectful discussion to take place through the appropriate appellate processes. We believe it augurs well for democratic processes, for federalism and, most importantly, for the aspirations embodied in the traditional family.
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