As Utahns flocked to their county clerks for marriage licenses only 24 hours after New Mexico’s Supreme Court ruled for gay marriage there, Rachel Maddow, on the day Shelby’s ruling hit the newswires in Utah — “yes, that Utah” — and why it stood out.
“I don’t know why this one feels different, but this one feels different,” Maddow said, pointing out that the federal court decision striking down Amendment 3 was the first of its kind since the Supreme Court did the same to the Defense of Marriage Act and California’s Proposition 8 in June 2013.
Her guest, New York University law professor Kenji Yoshino, did agree that the Utah ruling did signal a shift, considering the relatively low support for same-sex marriages in the state.
“Same-sex marriage advocates never thought that they would get Utah in the next decade,” Yoshino told Maddow. “To have it happen today is extraordinary.”
Maddow interpreted the ruling to mean that the 30 states where marriage equality bans are amendments to the state’s constitution could face stiffer legal challenges following the Supreme Court ruling since those would be measured against the federal Constitution, an assessment with which Yoshino concurred.
“What you need in those close to 30 states with constitutional amendments is the nuclear option of bringing a federal constitutional claim — where federal law clashes with state law, the state law wins,” Yoshino said. “But the danger is, if you litigate on federal constitutional grounds, that can go up to the Supreme Court.”
“Is that what’s gonna happen here?” Maddow asked.
“Possibly,” Yoshino said, explaining that there have been dozens of federal challenges filed against same-sex marriage bans, including a Virginia case that might make it to the high court.
“The big deal about this case is that they’ve used the nuclear option, a, and said, ‘We’re gonna bring a federal constitutional challenge to this,’” Yoshion said. “But also, ‘We’re gonna use Windsor, we’re gonna use that Windsor case.”
That case, he pointed out, challenged the Defense of Marriage Act’s lack of recognition for same-sex marriages in states like New York, where they are legal.
“The inexorable logic of [Justice Anthony] Kennedy’s opinion is, this is about the dignity of gay people,” Yoshino observed. “It doesn’t matter whether it’s a federal actor or [a] state actor that is [trampling] on the marriage rights of gay couples.”
“And states can’t infringe [on] that, no matter what their state constitutions say,” Maddow