Is Eric Holder Making Up Gay Marriage Law As He Goes Along?

Or is this how progress happens?

Gay Marriage rally in Salt Lake City, Utah
Brothers Riley (left) and Casey Hackford-Peer speak during a rally supporting same-sex marriage in Salt Lake City on Jan. 9, 2014. The boys’ mothers were married on Dec. 20, 2013, one of the 1,300 Utah same-sex marriages the federal government says it will recognize.

Photo by Sallie Dean Shatz/Reuters

Conservatives are crying “lawless” over the Obama administration’s decision last week to recognize the 1,300 same-sex marriages performed in Utah after a federal judge opened the door to these weddings last month—since shut, at least for now, by the Supreme Court. Are the critics right: Is Attorney General Eric Holder making this up as he goes along?

The problem for Holder, in granting federal benefits to these couples, is that Utah has decided to do the opposite, withholding state benefits by putting state recognition of the marriages “ON HOLD.” And the authority Holder cited for his decision, the Supreme Court’s verdict last June striking down the Defense of Marriage Act, is partly rooted in ensuring equality and dignity to gay couples and partly rooted in the power of states to define marriage. The court said DOMA was unconstitutional because “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” as Justice Anthony Kennedy wrote. But the majority also said the federal government should follow state recognition of gay marriage. And right now, the state of Utah does not recognize gay marriage. As Holder himself put it, Utah’s governor has announced that Utah won’t recognize these marriages as the case continues to be on appeal. That’s the governor’s call to make and surely a fair reading of his constituents’ views (though maybe that will change faster than he thinks now that gay marriage has gone and happened).

At the same time, the facts on the ground in Utah are, in a sense, up for grabs among the various branches of government. That’s been the case at other thrilling, historical moments of constitutional change—think back to the way in which desegregation proceeded in the civil rights era.  It wasn’t neat or swift; it was a complex and often fraught back and forth among the courts, Congress, the president, and the states. This is how the sausage of civil rights gets made—with slicing and dicing and a sprinkling of carpe diem.

Here’s how the sausage is getting made this time: On Dec. 20, federal Judge Robert Shelby struck down Utah’s constitutional ban on same-sex marriage. Both the gay couples challenging the law, and the state defending it, argued that United States v. Windsor, the Supreme Court ruling that struck down DOMA, was on their side. As Shelby put it, “Utah asserts that the federal government cannot intrude upon a state’s decision not to recognize same-sex marriage.” The gay couples, on the other hand, pointed to the ruling’s overall stance in favor of equality and dignity. Shelby went with the dignity and equality reading. The judge slyly quoted Justice Antonin Scalia, who predicted in dissent that Windsor augured the Supreme Court’s eventual conclusion that state bans on gay marriage, like DOMA, are motivated by the “bare … desire to harm” same-sex couples.

Shelby’s decision was an aggressive and unexpected, but legally defensible, interpretation of Windsor. He also took the unusual step of immediately allowing a thousand gay marriages to bloom, instead of staying his order until the appeals courts had a chance to weigh in. It turns out you can mostly blame Utah for this: The state apparently didn’t ask Shelby for a stay before his ruling and then afterward took a while to ask for a stay from the U.S. Court of Appeals for the 10th Circuit. The 10th Circuit said no to that request, stating that Utah did not show it would be likely to succeed on the merits of its appeal and also didn’t show that “irreparable harm” would likely follow if there were no stay. This may mean that the 10th Circuit will eventually wind up reading Windsor much as Shelby did—and eventually agree that it is unconstitutional for Utah to bar gay couples from marrying.

But we’re not there yet. Arguments before the 10th Circuit will probably take place over the spring or summer. And in the meantime, the Supreme Court did give Utah the stay it wanted (without saying why), leaving all those couples that rushed to the altar in “legal limbo,” as Utah Attorney General Sean Reyes put it. Last week, Reyes said the couples wouldn’t receive state benefits related to marriage, though they will get marriage certificates so that they “have proper documentation in states that recognize same-sex marriage.”

On what authority did Holder decide to part ways with Utah? University of Chicago law professor Will Baude thinks Reyes opened the door by authorizing proper documents for the 1,300 couples and saying that their weddings were “completed.” Baude points out that most of the time, the federal government recognizes marriages if they were “lawful under state law at the time of celebration,” which is the case here. Cornell law professor Michael Dorf offers a few other possibilities: Holder could think Utah got it wrong, or he could think that the validity of these marriages is a matter of federal law, which he gets to decide, since the Supreme Court didn’t.

Those semi-technical answers may be correct, but they’re not terribly satisfying. I take another possibility from Bruce Ackerman’s new book, The Civil Rights Revolution, out in February. (It’s the third volume in his We the People series.) Ackerman sees Brown v. Board of Education, the Supreme Court’s 1954 school desegregation decision, as grounded in the principle of “anti-humiliation.” This principle is related to dignity, but to Ackerman it’s less mushy and more specific. It’s about what black kids experienced when they were shut out of white schools because of their race. And it’s what gay couples experience when they are shut out of the institution of marriage because of their sexual orientation. “Windsor is a grandchild of Brown,” Ackerman says. And when you see the ruling that way, what matters most is not the importance it attached to state definitions of marriage but rather erasing the stigma of treating gay couples as different and lesser than straight ones. This is the ground Holder is surely standing on, too. “It’s not just poetry to say that in no way should any instrumentality of the federal government participate in this act of systematic humiliation,” Ackerman says. That’s the foundation of Windsor that supports Holder. And in that context, the attorney general got it right.