Editor's Note: Les Roka, The Selective Echo editor, and I
have collaborated on many posts and articles which have been featured at his
blog. He offers the comment on the following piece: 'The matter of marriage
equality is a settled debate. At this point, politically charged or
ideologically infused punditry adds nothing to the substantive legal and
constitutional decisions and analysis that have constituted the logical
foundation for marriage equality. To focus on politics or one's punditry in the
echo chamber of opinion is to risk serious errors of analysis and logic that
ultimately end up embarrassing and revealing of one's darker and socially
dysfunctional (and even ruinous) thinking. The following piece distills most concisely
and cogently the law and logic underscoring the correct and permanent move to
marriage equality.'
Last week, Judge Robert J. Shelby struck down Utah’s
Amendment 3 and its prohibitions against same-sex marriage. He identified the legal issue as “not who should define marriage, but the narrow question of
whether Utah’s current definition of marriage is permissible under the
Constitution.” Kitchen v. Herbert
The path toward marriage equality
has been uneven, but some guidance and signals from the last few years may
prove helpful to present and future movement.
In 2011 Professor Kenji Yoshino explained Why the Court can strike down marriage restrictions under rational-basis review. Yoshino expressed optimism that this
approach under equal protection and due process analysis could serve to
invalidate federal and state same-sex marriage restrictions.
In March 2013, the United States Supreme Court heard
argument concerning the federal Defense of Marriage Act (DOMA). United States v. Windsor DOMA,
enacted in 1996, essentially defined “marriage” and “spouse” to exclude
same-sex partners. In June, the
Court held that “DOMA is unconstitutional
as a deprivation of the equal liberty of persons that is protected by the Fifth
Amendment.”
In September 2013 Yale Law Journal Essay, Professor Douglas
NeJaime examined Windsor’s Right to Marry: “if we look [ ] closely at Windsor, we see that it is conceptually, if not doctrinally, a
right-to-marry case.” NeJaime considered Justice Kennedy’s conceptual view of marriage
and its broader implications.
NeJaime traced a changing model of marriage over the last
few decades, and he analyzed the resonance of marriage equality: “The view of
marriage that we observe in constitutional doctrine reflects the contemporary
legal and cultural consciousness around marriage, revealing a model of marriage
that is defined by norms capable of encompassing same-sex couples.”
NeJaime wrote “that same-sex couples already enact the norms of
marriage and desire entrance into the institution of marriage as currently
constructed,” but he also pointed out “to obtain tangible rights and benefits [
] and to receive respect for their sexual relationship, couples may have to
marry. […Marriage] is grounded in
norms of commitment, support, and obligation. And this private commitment is
buttressed by community knowledge—surveillance of sorts.”
In early October, Paul Burke, Brett Tolman and John MacKay predicted
the decision in Kitchen: “Utah’s
ban on same-sex marriage was doomed the moment the U.S. Supreme Court struck
down Section 3 of the Defense of Marriage Act last June.” (Marriage equality will arrive in Utah soon).
The piece suggested: “[m]arriage equality is coming soon
to Utah, and our state will be a better place when the LGBT community no longer
suffers from discrimination and second-class citizenship.”
In deciding Kitchen,
Judge Shelby allowed that “Windsor does not answer the
question presented here, but its reasoning is nevertheless highly relevant and
is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of
lawsuits in state and lower federal courts raising the question of a state’s
ability to prohibit same-sex marriage, a fact that was noted by two dissenting
justices [Roberts and Scalia].”
Shelby found a right to marry as a
fundamental right grounded in “the guarantee of liberty under the Due Process
Clause.” This triggered review
that Shelby applied at the rational-basis level: “The Plaintiffs assert three
theories why the court should apply some form of heightened scrutiny to this
case. While the court discusses each of these theories below, it finds that it
need not apply heightened scrutiny here because Amendment 3 fails under even
the most deferential level of review.”
Shelby opined: “[T]he State of
Utah has not demonstrated a rational, much less a compelling, reason why the
Plaintiffs should be denied their right to marry.” In accordance with his findings, on December 20, 2013, Judge
Shelby ordered: “The court hereby declares that Amendment 3 is unconstitutional
because it denies the Plaintiffs their rights to due process and equal
protection under the Fourteenth Amendment of the United States Constitution.
The court hereby enjoins the State from enforcing Sections 30-1-2 and 30-1-4.1
of the Utah Code and Article I, § 29 of the Utah Constitution to the extent
these laws prohibit a person from marrying another person of the same sex.”
The path towards Kitchen has been uneven. Though surprises may remain, the path
forward is clearer. Utah has
elevated marriage equality.
