As previously discussed, a federal district court in Utah ruled that federal law requires Utah to recognize same-sex marriage. Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013). The court refused to stay its ruling pending appeal, as did the Tenth Circuit. But the U.S. Supreme Court intervened and ordered a stay. Herbert v. Kitchen, No. 13A687 (Jan. 6, 2013). There was no recorded dissent.
Unlike some, the present author sees the Supreme Court ruling as a caution sign directed at the lower federal courts. In recent months, at least two major federal decisions have construed Windsor to require that state law restrictions on same-sex marriage be held unconstitutional. In addition to Kitchen, see Obergefell v. Kasich, No. 1:13‑CV‑501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). The effect of these rulings, and in the case of Kitchen the stated intent, was to create a broad federal right to same-sex marriage—that is, to extend to gay couples the reasoning of Loving v. Virginia, 388 U.S. 1 (1967).
But the blunt fact is, if Windsor had intended to apply Loving to gay couples, it could easily have done so. Instead of doing so, Windsor spoke at length about the long tradition of treating the validity of marriages as a subject for state law. That discussion is very inconsistent with any intent on the Court's part to hold that federal law requires recognition of same-sex marriage.
As this blog has previously noted, there are two parts to the Windsor opinion. The first part stresses federalism; the second part holds that section 3 of DOMA was unconstitutional because it was intended to discriminate against gay couples. The second part of the opinion is very broad, because essentially all restrictions on same-sex marriage were enacted with discriminatory intent on the part of at least some of their supporters. If not checked by the first part, the second part quickly leads to the position that all restrictions on same-sex marriage are invalid—which is tantamount to recognizing a federal right to same-sex marriage.
If the Supreme Court agrees that only the second part of the Windsor opinion matters, then Windsor essentially forces nationwide recognition of same-sex marriage in the very near future. If that was the majority's intent, it would seem logical to deny a stay in Kitchen.
By granting a stay, therefore, the Court suggests that the second part of Windsor does not automatically supersede the first part. The second part was the controlling rationale on the facts of Windsor, but that was true in part because the validity of marriages is a subject on which Congress has not traditionally legislated. State legislatures, by contrast, deal regularly and often with the validity of marriages. The validity of state law restrictions on same-sex marriage is therefore a different and somewhat closer question than the validity of federal law restrictions. It is not certain that the rationale of Windsor will apply to state law restrictions on same-sex marriage—and that is why the Court granted a stay.
The granting of a stay also does not mean, of course, that state law restrictions upon same-sex marriage will be upheld. The key question is whether the discussion of federalism in the Windsor opinion was intended as a material limitation on the holding. It is possible that the answer might be no—or that the answer might become no by the time the Supreme Court considers the question again.
But the granting of a stay in Kitchen does at least suggest the presence of a real and substantial question. If the discussion of federalism in Windsor was intended to have no weight, then the second part of Windsor probably would require nationwide recognition of same-sex marriage, and there would be no reason to grant a stay in Kitchen. By granting a stay, the Court suggested that the discussion of federalism in Windsor could potentially be a limitation on the remainder of the holding, and that the lower courts should not apply the second part without at least some consideration of federalism concerns.
Given the willingness of Obergefell in particular to apply the second part of the Windsor opinion without much consideration of the first part, the author reads granting of the stay as a caution sign. Windsor does not quickly and obviously lead to a federal right to same-sex marriage; the federalism portion of the Windsor opinion should be not summarily written off.
The ultimate answer to these questions must of course await the next Supreme Court same-sex marriage case—which could well be an appeal from the forthcoming Tenth Circuit ruling in Kitchen.