Marriage Equality in Utah on Hold: What’s Next?

Editor’s Note: Utah Gov. Gary Herbert’s office has announced that the state will not recognize the same-sex weddings that have already taken place there. “Shameful. Game on,” said National Center for Lesbian Rights’ executive director Kate Kendell on Facebook. NCLR has announced it will be a co-counsel in the Utah marriage equality appeal.

The news yesterday that the U.S. Supreme Court has put same-sex marriages in Utah on hold was disappointing to all supporters of marriage equality. For Kate Kendell, executive director of the National Center for Lesbian Rights (NCLR), the case struck home even more than usual. A Utah native, Kendell and the NCLR had been supporting the Kitchen v. Herbert federal challenge to the state’s marriage ban, Amendment 3, and so she was overjoyed when, on December 20, U.S District Judge Robert J. Shelby ruled that lesbians and gay men should be allowed the right to marry. As an added bonus, Kendell’s daughter, Emily Holmes, and Emily’s partner, Heather Pope, tied the knot in Salt Lake City on December 23.

Reached by phone yesterday, Kendell called the SCOTUS decision simply “a pause, an interruption” in the marriages. “No one should draw any negative inferences about where the Court ultimately may end up on the key questions of marriage for same-sex couples,” she said.  

In our interview, Kendell helped make sense of the latest developments and expressed optimism that the end game for marriage equality will be a victory at the national level.

Ms. Blog: When the decision came down last month in Utah and same-sex couples started getting married there, most of the nation was surprised. But you saw it coming, right?

Kate Kendell: Yes, [the NCLR] has been working with the attorneys in Utah pretty closely. We knew that this was a fair and reasonable judge. He’s by no means a maverick, of any political stripe. That gave us a good shot at winning at the trial court level. Because one thing that’s clear as these cases go on… the emperor being totally naked becomes very obvious in terms of the veracity and the credibility of our opponents’ arguments. In a court of law, you can’t hide behind lies and misinformation and stereotypes. You have to present facts, and you have to present argumentation from credible sources. You can’t just rely on bigotry and prejudice. It is no surprise that in all of the recent court actions, we’ve been winning.

When Amendment 3 was found unconstitutional, there was no reason for couples to not begin marrying. And that’s exactly what happened!

Now that about 1,000 same-sex couples have gotten married in Utah, is it more likely that the higher courts will uphold marriage equality in the state because to do otherwise would nullify existing marriages?

A practice is either constitutional or unconstitutional, straight up, even if prior to it being declared unconstitutional no one had been able to exercise the right. The key issue is when will it dawn on the people in power that the way they’ve been proceeding is in violation of the [constitutional] values [of equality and justice] that they pretend to espouse. 

For example, the 14th Amendment was sitting in the U.S. constitution for a period of time before the 1964 Civil Rights Act or before anti-miscegenation laws were struck down, and with marriage and same-sex couples it’s the same way. It’s not as if this is a new right. The right for same-sex couples to marry has always existed in a constitutional democracy that values freedom, justice, fairness and equality. What we have labored against is a dominant power structure that refuses to recognize those constitutional rights against a stigmatized minority.

It’s always easier to change people’s minds about their prior practices when they see real life examples of people doing the very thing they’ve been opposing.

Are there parallels between the Utah situation and what has happened in California, where same-sex couples were able to marry before Proposition 8 was passed? 

Prop 8 was struck down [by the U.S. Supreme Court] based on standing, but what those marriages did provide was a real life illustration of exercising the right that for so long had been denied and seeing that the exercise of that right hurt no one—that it resulted in none of the social ills that our opponents pretend exist.

In a place like Utah, the narrative of how this issue is now presenting itself, will be even more important because Utah—and as a former Utahn myself, this is the place I call home—is a culture that really does value integrity, and fairness. Now, certainly there are doctrinal reasons why they might oppose marriage equality and they might feel like LGBT people won’t ever achieve the highest level of God’s kingdoms, but for many Mormons that is a separate question from whether it is okay for the government to engage in discrimination. Seeing couples getting married, I think that plain sociological experience will have a lot to do with hopefully ultimate success in the litigation, even though the fact of those marriages existing or not existing is not critical to the fundamental legal question.

What are the next steps for this case? 

Now it goes to the 10th Circuit Federal Court of Appeals, which sits in Denver. And then it goes to the U.S. Supreme Court.

What’s your take on the 10th Circuit court?

The 10th Circuit is regarded as a conservative-to-moderate court, but… we are no longer in a landscape where the right of same-sex couples to marry is a conservative or liberal issue. Now that we have the involvement of Ted Olson and a whole host of Republican officials and leaders, the playbook that said “if you get a conservative court you’re going to lose on marriage, if you get a progressive court, you’re going to win,” is out of date. The playbook now is a fair-minded court made up of jurists who do not have a politicized agenda will rule in favor of equality for same-sex couples simply because of the dearth of rational reasons for excluding same-sex couples.

Let’s talk about your personal connections to this story.

Probably more than any other thing I’ve ever done, it’s been a very personal thing.

My daughter was raised in Utah by me and her biological mother, my former partner—we were together for 12 years. Emily and I have continued to be very close. She is very much a part of my family with Sandy (Kendell’s wife). We have two younger kids, a 17-year-old and a 12-year-old, and she’s “big sissy” to them. She and her partner Heather got married in a commitment ceremony in Utah in September. It was a fabulous wedding. Many of my family attended, many of my Mormon relatives and extended family, my sister who is a devout Mormon—all came, completely celebratory and happy for Emily and Heather. The plan was that sometime in 2014 Heather and Emily would come to California and legally marry. And then Shelby made his ruling, and that obviously changed everything.

We went through a fair amount of drama, and then finally the decision was made on Sunday night that they would go and stay overnight in Salt Lake, get to the city and county building and stand in line, and hope to be able to marry.

It was so exhilarating, and the whole family was a part of it. At one point, Sandy, my wife, said, “Gosh, we know a bunch of people [in Salt Lake City]—can’t somebody go and take them flowers and be there with them?” And then [our son] Julian said, “Why don’t you ask Aunt Sharon [Kendell’s sister]? Sharon said, “We would love to do it!” [She and her husband] changed their plans entirely and  got a bunch of donuts and donuts for the people standing in line [to marry]. She said, “We barely made it, but it was so exciting!” Sharon, my sister, my devoutly Mormon sister—and her husband—could not have been happier to be there, and my sister is an official witness to the marriage. Her name is on the marriage license.

What a great story!

Yeah, I was crying, and I could see from the pictures that Emily and Heather were crying. I’ve never been one to think that people need to get [legally] married for their relationship to matter, but this clearly really mattered to Emily and Heather. And to have them be able to have a marriage license and have an officiant say, “By the power vested in me by the state of Utah, I pronounce you spouses for life,” was a very, very moving experience, for them and for the other 900-plus couples who also got married. The ripple effect is incalculable.

And for the nation as a whole!

Ultimately, on the issue of marriage for same-sex couples, we all know we need a federal solution. Because even if we were to win the right to marry in 25 or 30 states, there would still be states who would refuse to recognize it if they had the choice, just as there would be states who would [disallow] marriage between mixed-race couples, who would refuse to integrate their schools, who would refuse to recognize the rights of undocumented people, who would refuse to give women the right to vote. It would be a lot different experience living in Alabama than living in Vermont. At some point, we need the U.S. Supreme Court to—just as they have done innumerable times on civil rights questions—unite the nation under the umbrella of the 14th Amendment and say, “Yes, equality under the law means no matter where you live you are a full citizen, entitled to the protection and the equality of our constitutional promise.”

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Audrey Bilger is the current president of Reed College, and previously served as vice president and dean of Pomona College. She is also a former professor of literature at Claremont McKenna College and faculty director of the Center for Writing and Public Discourse. She also teaches gender studies, and occasionally yoga. Her latest book, which she co-edited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and Marriage (Seal Press, 2012). She is also the author of Laughing Feminism, editor of an edition of Jane Collier’s 1753 satire "An Essay on the Art of Ingeniously Tormenting," and a frequent contributor to Bitch magazine. Her work has been featured in The Paris Review, Rockrgrl, the Huffington Post and the Women's Media Center.