Utah, Indiana, Heightened Scrutiny and Next Steps: Is Marriage Heading to the Supreme Court?

TenthcircuitThe most pressing question is what happens now that the Tenth Circuit has affirmed that Utah's ban on same-sex marriage is unconstitutional?

First, gay couples cannot marry just yet. A stay, which was already put in place after a great number of couples had already married, is attached to the appellate court's decision. The stay explicitly mentions that the ruling should be stayed pending Supreme Court review.

Second, there are several possible steps forward. The ultra-conservative leaders of Utah are unlikely to concede the justice of marriage equality and accept gay marriage in the state (as the embattled Republican governor did in Pennsylvania). Assuming they want to pursue the case, the state could ask for the Tenth Circuit to rehear the case en banc. That means that instead of just 3 judges deciding the issue for Utah and the Tenth Circuit, the same questions would go to the entire Tenth Circuit. If the Circuit grants a rehearing, which is not that likely, they could ask for additional briefing or decide the case on the current briefs. That process could take several months and, at least, into next fall. Or, the state defendants could appeal directly to the Supreme Court. Because we are almost at the end of the current Supreme Court term and because the Court does not meet to discuss certiorari petitions over the summer, we would not hear anything about whether the Court accepts the case and when the hearing gets scheduled until early next fall. 

SupremesThis brings up the related question: Does the Supreme Court have to take this case?

No. The Court knows what's happening in the lower courts. The justices know that various cases are winding their way through the lower courts from all corners of the country and even if state defendants do decide to appeal up to the Supreme Court, the Court may elect to do nothing and wait to see what happens with all the other cases. The Court has in the past waited for several cases to come up for review, taken one or several, and decided all issues under one umbrella. This is sort of what happened when the Court granted a hearing in the Windsor case rather than any of the various other DOMA cases.

It is not even an absolute certainty that the Supreme Court will ever take a marriage equality case. Granted, it is highly likely that marriage equality is heading back to the Supreme Court, whether it is from the Tenth, the Fourth, or whatever other circuit. However, it is not certain. The Tenth Circuit has affirmed the unconstitutionality of Utah's ban. The Fourth Circuit may follow suit in short order. Michigan's ban is up for review, as is Texas's. Cases are lower down in the system elsewhere. But, eventually, every appellate court could have a marriage equality case before it. If every appellate court strikes down the gay marriage bans, and given our post-Windsor streak, that seems possible, there would be no legal question demanding the Supreme Court's answer.

Of course the Supreme Court may take a marriage case anyway. But for all our talk of needing the Supreme Court to give us a nationwide right to marry, our post-Windsor winning streak may make the Supreme Court unnecessary. 

Over the next few days and weeks, I will return to these decisions and discuss the details. Stay tuned!


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. MiddleoftheRoader says

    Very interesting 10th Circuit court decision for a few reasons:

    1) Unlike almost every court (maybe every court) that struck down marriage bans after the Windsor decision, the 10th Circuit actually applied the “compelling interest” test (also called the “strict scrutiny” test. The 10th Circuit ruled that the reasons against marriage were NOT sufficiently compelling. What is significant is that the 10th Circuit did NOT say that there is no “rational basis” for a marriage ban. So, if the Supreme Court reviews this case, it could uphold the 10th Circuit — OR it could say that the 10th Circuit applied the wrong legal standard and so the decision must be reversed and sent back to the 10th Circuit to review the marriage ban under a “rational basis” test in order to see if the marriage ban is “rational”.

    2) The reason that the 10th Circuit applied the “compelling interest” test (also called the “strict scrutiny” test) is NOT because it said that sexual orientation is a “suspect” classification like race — in fact, the 10th Circuit said it will NOT make a decision on whether sexual orientation is a “suspect classification” (this is different from the 9th Circuit which made that conclusion in a jury-selection case, NOT a marriage case). Instead, the 10th Circuit applied the “compelling interest” test because of sexual orientation, but because it said that marriage is a “fundamental right” — and any law that prohibits marriage must have some “compelling interest” (and not just be “rational”). In this regard, most of the other courts to decide these cases have also found that marriage, even same-sex marriage, is a “fundamental right” — but they applied the “rational basis” test, not the “compelling interest” test. So one issue that remains is whether the Supreme Court will say that ONLY “traditional marriage” is a “fundamental right” (ie, opposite-sex) or whether it will say that marriage is marriage is marriage, and the right to marry (same or opposite sex) is a “fundamental right”. That’s going to be a key issue for the Supreme Court (and other Courts of Appeals that are deciding similar cases).

    3) If you want to know what a Supreme Court opinion that UPHOLDS BANS on same-sex marriage would look like, just read the DISSENTING OPINION in the 10th Circuit case. It could have been written by Scalia, Thomas, Alito or Roberts — and maybe that’s exactly what those Justices will say. The only important question in ALL of these marriage cases is: What will Justice Kennedy say? That’s merely a guess at this point. (And of course it’s also an issue of whether the Supreme Court will say that sexual orientation is a “suspect classification”).

    4) Probably in the next month there will be at least one other US Circuit Court opinion on marriage — and probably 3 other opinions in the next 2 or 3 months. My bet is that they will all have a different analysis than the 10th Circuit, even though the result might be the same.

  2. says

    I think the ultra-conservative four members of the Supreme Court would rather they not have to decide this issue at all. They would rather the appellate courts all agree and that way they don’t have to be scarred by a decision.

    The appellate court I worry about the most is the 5th Circuit. It is arguably the most conservative of the appellate courts and they could rule against us.

    If that were to happen, the Supreme Court would have no choice but to take the case as their would be a split in the appellate courts.

  3. MiddleoftheRoader says

    @BERNARD — if you go to the Towleroad link to the 10th Circuit opinion, just keep scrolling through the PDF versions of the opinion until you reach page 65, where the majority opinion ends. The dissenting opinion begins on the next page (it starts as page 1 of the dissent, but it’s 66 pages into the document).

    You don’t have to agree with the dissent, but he says that the only “marriage” that is a fundamental right is “traditional” (opposite sex) marriage, and so because same-sex marriage is NOT a fundamental right, then a state can ban same-sex marriage if it has a “rational basis” to do so. Then the dissent discusses all of the reasons given by Utah to ban same-sex marriage, and he finds that they are “rational”. Also, the dissent says that because sexual orientation is not a “suspect class” like race or ethnicity, then a state can ban the “class” of gay people from getting married if there is a “rational basis” to do that — to let opposite-sex couples marry, but not same-sex couples. And finally he says that the reasons given by Utah to ban same-sex couples from getting married does not deny them “equal protection” because it’s rational to have that ban in effect.

    It might not be persuasive reasoning to many of us, but that’s exactly how the US Supreme Court could uphold bans on same-sex marriage. One of the conservative Supreme Court Justices could basically write the same opinion that the dissent judge wrote on the 10tht Circuit. The key question: Will Justice Kennedy buy that approach (in which case, we’re dead in the water), or will he find the bans on same-sex marriage are unconstitutional (which can be based on lots of different reasons).

    I hope this explanation helps.

  4. Rich-SD says

    Thanks, Middle. It seems the 10th Circuit has doubled down our judicial bet, compelling not merely a decision on the right to marry but also on whether LGBT is a protected class.

  5. JDH says


    Watch for them to allow corporate RFRA claims but to find against Hobby Lobby’s particular claims due to scope of involvement to third parties.

    This establishes a new right to corporate religious exercise while also placing (amorphous) limits on impact to third parties to be refined in later cases.

  6. Bill says

    Ari neglects to mention that since all the Utah officeholders who are defending the state’s ban say that the case has to go the the Supremes, a request for rehearing en banc is extremely unlikely.

    Also, “the Court” does not take cases. Any 4 justices can grant cert. Will the liberal 4 grant cert because they are confidant of Kennedy’s position or hold until more dominoes fall into place? And hasn’t SCOTUS already taken charge of the body of cases by granting a stay? Renegades like Boulder can do what they want, and even some District Court judges, but the Courts of Appeals will all stay their decisions until one decides to force SCOTUS to consider again whether a stay is in order, which just ain’t likely to happen.

  7. plinx says

    OK, so let’s say the SC denies cert. Does that mean the stay is lifted? And if Utah indefinitely drags its heels in filing a cert petition, doesn’t that effectively prevent marriage equality indefinitely? Is there a reasonably accepted window for when a cert petition can be filed? Ari? Middle?

  8. DC Insider says

    If SCOTUS denies cert the Tenth Circuit said it will lift their stay. I think this will be true in all other circuits that hear a marriage equality case. SCOTUS will not likely weigh in until (and if) they get a circuit split, where same sex marriage is legal in almost all circuits, but one stands alone against it. If that happens, cert is almost guaranteed. In the absence of that, I suspect SCOTUS will continue to deny cert for the next several years with the hope that the legislative process will moot the Constitutional issues raised.

    If, after several circuits weigh in, SCOTUS might accept cert without a circuit split, just to end the debate, but my hunch is they will not weigh in on this issue for many years.

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