Well, that was unexpected. From Scotusblog:
Directly applying the Supreme Court’s decision striking down the federal Defense of Marriage Act to a state’s ban on same-sex marriage, a federal judge in Salt Lake City ruled Friday that Utah’s voter-approved state constitutional amendment violates the federal Constitution.
“The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity,” U.S. District Judge Robert J. Shelby ruled in a fifty-three-page opinion. He was the second federal judge to nullify a ban imposed by a state’s voters at the ballot box; the first such ruling nullified California’s “Proposition 8″ — a ruling that the Supreme Court left intact in June but without a direct ruling on it.
If Judge Shelby’s ruling withstands an appeal, it would make Utah the eighteenth state where same-sex marriages are allowed, and the seventh in which equal marriage rights were established by a court ruling.
Utah has already filed an appeal of Shelby’s decision – the case is named Kitchen v. Herbert. The Tenth Circuit (covering Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming) will have a chance to rule, and it’s conceivable they’ll uphold the decision – the Tenth currently has ten judges, split five/five between Republican and Democratic appointees. However, there are also two vacant seats, which presumably Obama will fill sometime soon, since the filibuster is no longer a barrier.
If the Tenth Circuit overrules Kitchen, then I imagine that will be that. But if the Tenth Circuit upholds Judge Shelby’s Kitchen ruling, then this case could wind up in the Supreme Court. My expectation is that the Court would find some way to overturn Kitchen rather than legalizing same-sex marriage everywhere in the country. But I’m not 100% sure. Interesting times!
So what happens if the Supreme Court does legalize same-sex marriage across the nation? Well – that’s total victory for the pro-SSM side, as far as I can tell. At that point, the only recourse left for marriage equality’s opponents will be to try for a Federal Constitutional amendment banning same-sex marriage. And a decade ago, they would probably have been successful. But in today’s environment – where the majority of Americans support legal same-sex marriage – it’s hard to see how a Constitutional amendment could be done.
Incidentally, Judge Shelby’s decision includes a not-very-subtle middle finger extended to Justice Scalia.