Slate's Emily Bazelon examines whether Holder is making things up as he goes along. By announcing Utah married same-sex couples can access federal benefits while the state has put those marriages "on hold," Holder may be signaling he thinks Utah is in the wrong.
On what authority did Holder decide to part ways with Utah? University of Chicago law professor Will Baude thinks Reyes opened the door by authorizing proper documents for the 1,300 couples and saying that their weddings were “completed.” Baude points out that most of the time, the federal government recognizes marriages if they were “lawful under state law at the time of celebration,” which is the case here. Cornell law professor Michael Dorf offers a few other possibilities: Holder could think Utah got it wrong, or he could think that the validity of these marriages is a matter of federal law, which he gets to decide, since the Supreme Court didn’t.
Those semi-technical answers may be correct, but they’re not terribly satisfying. I take another possibility from Bruce Ackerman’s new book,The Civil Rights Revolution, out in February. (It’s the third volume in his We the People series.) Ackerman sees Brown v. Board of Education, the Supreme Court’s 1954 school desegregation decision, as grounded in the principle of “anti-humiliation.” This principle is related to dignity, but to Ackerman it’s less mushy and more specific. It’s about what black kids experienced when they were shut out of white schools because of their race. And it’s what gay couples experience when they are shut out of the institution of marriage because of their sexual orientation. “Windsor is a grandchild of Brown,” Ackerman says. And when you see the ruling that way, what matters most is not the importance it attached to state definitions of marriage but rather erasing the stigma of treating gay couples as different and lesser than straight ones. This is the ground Holder is surely standing on, too. “It’s not just poetry to say that in no way should any instrumentality of the federal government participate in this act of systematic humiliation,” Ackerman says. That’s the foundation of Windsor that supports Holder. And in that context, the attorney general got it right.