By Matt Pearce, Los Angeles Times
This week Kentucky was on the brink of recognizing same-sex marriages performed in other states as legal.
That is, right up until Wednesday, when the same federal judge who thunderously struck down the state’s ban in February decided to put a temporary hold on his own decision. Gay and lesbian couples, it turns out, will have to wait.
But if you’ve been paying attention, you probably could have guessed that was going to happen.
Welcome to the Great Gay Marriage Waiting Game of 2014 (and perhaps beyond), in which a sudden rush of dramatic same-sex marriage rulings around the country await review by higher courts.
For that wait, thousands of gay couples can partially thank the state of Utah, where a dash by same-sex couples to get married after such a ruling caught conservative state officials off-guard — and ultimately prompted a signal from the country’s highest court to slow things down a bit.
In Utah, a frantic appeal from the state was denied by an appeals court before the U.S. Supreme Court issued a two-sentence order in early January simply stating that Utah’s ruling (and further same-sex marriages) should be on hold until the appeals process was complete.
Those two sentences probably won’t get quoted in any history books. But it was that intervention that hinted for other federal judges to restrain themselves as they throw out laws passed not that long ago with the overwhelming support of voters and legislatures, and its after-effects were firmly felt in Kentucky on Wednesday.
At times in his four-page opinion this week, U.S. District Judge John G. Heyburn II in Kentucky was rather blunt about the state’s effort to overturn his previous decision, in which he had likened same-sex marriage bans to past discrimination against women and blacks.
The state “has not made a strong showing of a likelihood of success” of having his ruling set aside, Heyburn wrote in the Wednesday decision.
Heyburn also noted that not a single federal court has ruled in favor of same-sex marriage opponents since the Supreme Court struck down part of the federal Defense of Marriage Act last summer — which, in ensuing lawsuits, led lower courts to extrapolate from that decision and conclude that state bans are probably unconstitutional, too.
Heyburn even went so far on Wednesday as to conclude that preventing gay and lesbian couples in Kentucky from having their marriages in other states recognized, and getting valuable government benefits, “for even minimal amounts of time constitutes irreparable harm.”
These are all strong words coming from a federal judge.
But a kind of judicial caution would prevail after Heyburn noted the Supreme Court’s “unusual intervention” in the Utah case and the need to wait for higher approval, which led Heyburn to deliver a brief homily about the workings of the American justice system.
“It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say,” Heyburn wrote. “It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of our Constitution.”
Heyburn then issued a stay on his own ruling, which dumped a bit of cold water on a hot issue that has already seen Kentucky’s attorney general cry at a news conference while announcing his decision to stop fighting the same-sex marriage ruling. (The appeal is being carried out by outside attorneys chosen by Kentucky’s governor.)
The judge’s decision to stay his own decision has become something of a routine in such cases — likely as much about the same-sex marriage debate as it is about the credibility of the court system itself.
It’s not unusual for federal judges to put a pause on their own decisions until they’re reviewed, USC law professor David Cruz told the Los Angeles Times on Wednesday.
But there were probably some public confidence issues at play as well when the Supreme Court decided to step in during the Utah decision and send a signal that the process should be a little more deliberate, Cruz said.
“We’ve seen lots of attacks on the judiciary in recent years, from forces on the political right … a lot of states decrying activist judges … (and) a lack of deep understanding about how our judicial system functions in our scheme of government,” Cruz said. “And we see a lot of criticism about a single federal judge overturning the will of the people. The U.S. Supreme court has been concerned about judicial legitimacy, so it could be responding to that.”
Cruz also cited the precedent set by now-retired U.S. District Judge Vaughn Walker in California, who declared the state’s same-sex marriage ban unconstitutional in 2010. Walker saw the U.S. 9th Circuit Court of Appeals put his ruling on hold until the U.S. Supreme Court ultimately weighed in during 2013 — backing Walker.
With some experts expecting the current crop of rulings to follow a similar path all the way to the nation’s highest court _ whenever that may happen _ “the Supreme Court might want judges just to follow the judicial equivalent of dotting their I’s and crossing their T’s,” Cruz said.
Or, as judge Heyburn put it in Kentucky on Wednesday: “It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.”
And that’s when he put the matter in the hands of the 6th Circuit Court of Appeals.
Photo: Fibonacci Blue via Flickr