Utah is just a distraction

 A woman makes her support of her marriage, and not civil unions, known outside the Mormon temple at New York City's Lincoln Center. Photographer's blog post about this photo and the protest. (David Shankbone)

A woman makes her support of her marriage, and not civil unions, known outside the Mormon temple at New York City's Lincoln Center. Photographer's blog post about this photo and the protest. (David Shankbone)

 A woman makes her support of her marriage, and not civil unions, known outside the Mormon temple at New York City's Lincoln Center. Photographer's blog post about this photo and the protest. (David Shankbone)
A woman makes her support of her marriage, and not civil unions, known outside the Mormon temple at New York City’s Lincoln Center. Photographer’s blog post about this photo and the protest. (David Shankbone)

Gay marriage in Utah is a milestone, but the Utah case is not going to end in the sweeping gay rights case that we are looking for, and we need to look beyond this distraction, and find the best path forward.

A few weeks ago a federal district court said that Utah’s ban on gay marriage was unconstitutional under the recently decided Supreme Court case, Windsor. The Windsor case said the federal law, the Defense of Marriage Act (DOMA), was unconstitutional because it denied equality to gay married couples.

In effect, for a moment, the heavily conservative state of Utah had marriage equality. However, the Supreme Court has stopped gay marriage in Utah pending an appeal of the decision granting marriage equality.

Some on my side of the aisle are giddy with joy and believe that if the Court takes on the case, marriage equality might spread to all the states.

I would love to see that, but there is no reason for the Court to do that. At the most, I see Utah regaining marriage equality.

Let’s look at the facts of the situation. Utah had a anti-marriage equality law that were struck down by the federal district court because they violated the Fourteenth Amendment. In effect, for a week and a half there was marriage equality in Utah.

The two  likely and possible Supreme Court answers to the marriage equality question is: refuse to decide or use a doctrine from the Proposition 8 case.

The first situation is very likely because the Court might not want to put a sweeping for or against opinion on gay marriage. For example, the conservatives have a good reason to fear that the liberals and Justice Anthony Kennedy, the same justices that defeated the discriminatory DOMA law. Likewise, the liberals would not want to move too fast because the legislative process will affirm the right of marriage with more credibility.

The second situation will give Utah marriage equality, just with a different reasoning. This one will rely on the idea that a government cannot take rights away from people, once those people have been given those rights. This was the way the Prop 8 case was decided in federal court. Again, no sweeping marriage equality decision.

In the two most probable routes the Court will take, neither will result in a sweeping marriage equality decision.

I’m sorry my fellow marriage equality advocates, we need to forget the Court and focus our efforts in legislation that promotes equality.

In the context of civil rights, the Court is slow and waits for a time when its decisions will be mostly supported, but controversial, nonetheless.  Therefore, if we want equality quickly, it would be best to fight for it in the legislatures of states.

Of course, those fights will not be easy, nor will they be quick, but their successes are integral parts in the struggle for equality.

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