Friday, December 27, 2013

The Utah Gay Marriage Ruling is Judicial Activism, But Not Because of the Decision....

Conservatives are quick to label Judge Shelby's decision a case of "judicial activism." But, what does that mean?

I'm not going to criticize the ruling in this post. I am going to argue that regardless of your opinion on gay marriage, this decision is not the way we want decisions to be made.

The Decision was Issued at the Wrong Point in the Case

Judge Shelby decided the case by ruling on a motion for summary judgment. He essentially ruled that there are no disagreements of fact. That is patently untrue and he made the ruling without hearing the facts in dispute.

Motions for summary judgment are made at the beginning of almost every case, by both sides, as they were here. In these motions, each side makes a BRIEF summary of their case focused on why there doesn't need to be a trial. The goal is to convince the judge that there is no real chance the other side can win.

There are no witnesses called, and only limited written and oral arguments are heard in support of a motion for summary judgment. Neither side presents all their evidence.

That's the key point - Neither side presents all their evidence.

This case will have a huge impact nationwide, not just in Utah. If judge Shelby's ruling is eventually upheld, ALL state laws and constitutional amendments will be invalidated, not just Utah's. His ruling really is unprecedented. No other Only one other gay marriage law has ever been found to violate the Federal Constitution. **

In this type of case I want all the evidence to be heard. I want to know that the judge has heard all the arguments for and against amendment 3, not just a summary focused on criticizing the other side's case.

Judge Shelby pointed out that the state didn't ask for a stay with their motion for summary judgment. The state didn't move for a stay at the time because no one expected the case to be decided at this point. The Plaintiffs did not move for a stay either, for the same reasons.

If judge Shelby had ruled for the state, proponents of gay marriage would want all the evidence heard. They would feel that the ruling "short circuited" the legal process - and they would be right. Summary judgment is not appropriate in a case of this magnitude.

Not Staying the Decision Pending Appeal Means the State Can Never Win

In addition to not hearing all the evidence, by not issuing a stay of his decision (allowing the status quo to remain) while the State appeals, Judge Shelby is ensuring that even if Utah wins in the Appeals court, or the Supreme Court, the couples suing the state still win.

He is harming Utah's position on appeal.

Let's imagine another case. In this case two parties dispute ownership of land. One side has been recognized as the undisputed owner, and has kept he land as undeveloped wilderness for over 100 years. The other party recently discovered that they may, in fact, be the true landowner, and they want to build a skyscraper on the lot.

The party wishing to build on the land sues the other party, and both sides submit motions for summary judgment. Both sides, and the court, know that the losing side will appeal the ruling.

Let's assume that the judge finds that the skyscraper team owns the land, and rules for them, and allows them to start building the skyscraper immediately. The losing side has substantial evidence to present, and asks the judge to stop construction until they can appeal the ruling.

The fair outcome in this case would be for the judge to halt construction until the case has a final decision. If she does not, and allows construction to begin, the skyscraper team wins anyway, no matter what happens on appeal. If the original owner wins in the supreme court 3 years later, it doesn't matter, the building has been built. It would be expensive and unjust to tear down the building and return the land to its original state - who would pay the costs to clear it, and who would compensate the developer for the time and resources spent to build the skyscraper?

That's the position Judge Shelby has put Utah in. By not staying his decision, the Plaintiffs get everything they want while the appeal is ongoing. If Utah wins on appeal, the "damage" is done. the definition of marriage in Utah has changed because hundreds of gay marriages have been performed, joint tax returns filed, death benefits collected and so on. It would be unjust and expensive to allow Utah to keep traditional marriage. The longer gay marriages are performed, the more parties would be harmed by a ruling in favor of the state. Appeals courts consider this kind of harm when ruling, as they should.

Leaving the law in place during appeal does not impact either the state or same-sex couples in Utah, and would not harm Utah's chances on appeal. That would have been the fair way to handle things.

In summary, judge Shelby did not have all the facts when he ruled. He alone invalidated the marriage laws of 33 states without hearing all the evidence from both sides in even one of those states. He seems convinced that no evidence could possibly convince him, the 10th circuit, or the U.S. Supreme Court to rule otherwise, and thus will not stay his decision. The fact that he chose not to leave the status quo in place while the state appeals means that Utah loses, and the plaintiffs get what they want, even if the state wins in the appeals court.

That's what we mean by judicial activism.

** (A reader pointed out to me that one other Federal District judge has ruled on 14th amendment grounds - Judge Vaughn in the California Prop 8 case. His is the ruling that still stands after the Supreme Court vacated the Ninth Circuit decision. However, this decision will not be appealed again, and can't be used to strike down marriage laws in other states -- It's complicated).