Box Turtle Bulletin

Tenth Circuit Upholds Lower Court Ruling Against Utah’s Marriage Ban

In a 2-1 decision, the Tenth Circuit Court of Appeals upheld the December Federal District Court ruling which found that Utah’s ban on same-sex marriage was unconstituional. More significantly, the Appeals Court upheld the use of strict scrutiny in affirming the lower court’s decision. The appeals court also issued a stay pending an expected review by the U.S. Supreme Court. Writing for the majority, Judge Carlos Lucero begins his 65-page opinion:

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court.

We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and—by legislature-initiated action—the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State “will not recognize, enforce, or give legal effect to any law” that provides “substantially equivalent” benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code § 30-1-4.1. These laws were also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. …

Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (“DOMA”), United States v. Windsor, 133 S. Ct. 2675 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?

Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.

The Appeals Court turned to the Windsor decision, quoting from it extensively because “the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored.” It also cited Griswold v. Connecticut and Loving v. Virginia, among a number of other cases, in agreeing that marriage is a fundamental right.

We must reject appellants’ efforts to downplay the importance of the personal elements inherent in the institution of marriage, which they contend are “not the principal interests the State pursues by regulating marriage.” Rather than being “[m]utually exclusive” of the procreative potential of marriage, these freedoms—to choose one’s spouse, to decide whether to conceive or adopt a child, to publicly proclaim an enduring commitment to remain together through thick and thin—reinforce the childrearing family structure. Further, such freedoms support the dignity of each person, a factor emphasized by the Windsor Court.

The Appeals court nails the “procreative” argument, and cites Justice Scalia for good measure:

Instead of explaining why same-sex marriage qua same-sex marriage is undesirable, each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”). Same-sex marriage  cannot be allowed, appellants assert, because it is better for children to be raised by biological parents. Yet adoptive parents, who have the full panoply of rights and duties of biological parents, are free to marry. See Utah Code § 78B-6-139 (adoptive parents have same rights and duties). As are opposite-sex couples who choose assisted reproduction. See §§ 78B-15-701 to 707 (providing rules for parental rights in cases of assisted reproduction); §§ 78B-15-801 to 809 (providing rules governing gestational agreements)

But that’s not to say the child-rearing is irrelevant to the question of whether same-sex couples should be allowed to marry:

The Court has repeatedly referenced the raising of children—rather than just their creation — as a key factor in the inviolability of marital and familial choices. … Although cohabitating same-sex couples are prohibited from jointly adopting children under Utah law as a result of the same-sex marriage ban, Utah Code § 78B-6-117(3), the record shows that nearly 3,000 Utah children are being raised by same-sex couples. Thus childrearing, a liberty closely related to the right to marry, is one exercised by same-sex and opposite-sex couples alike, as well as by single individuals.

Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determina[nt] of the existence of a family.” Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 843 (1977). …. As the Court in Windsor held, restrictions on same-sex marriage “humiliate[] tens of thousands of children now being raised by same-sex couples” and “make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” 133 S. Ct. at 2694. Such statutes “bring[] financial harm to children of same-sex couples . . . raise[] the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses” and “den[y] or reduce[] benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.” Id. at 2695. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.

One argument that is often put forward by same-sex marriage opponents — and was put forward by the state of Utah — is that children “deserve” a mother and a father because “men and women parent children differently.” The Appeals Court quickly dispensed with that trope:

But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encouraging gendered parenting styles. The state does not restrict the right to marry or its recognition of marriage based on compliance with any set of parenting roles, or even parenting quality. … Instead, every same-sex couple, regardless of parenting style, is barred from marriage and every opposite-sex couple, irrespective of parenting style, is permitted to marry. … As with appellants’ asserted procreation rationale, we are offered no coherent explanaiton for the state’s decision to impose disabilities only on one sublclass of those sharing a claimed deficiency.

Judge Jerome A. Holmes joined Lucero in the majority oppinion. In Judge Paul J. Kelly, Jr.’s dissent, he took a hard line against the majority’s ruling. He held that the 1971 Baker v. Nelson, in which the U.S. Supreme Court summarily dismissed an early challenge to Minnesota’s law banning same-sex marriages, “foreclose the Plaintiffs’ claims, at least in this court.” Ignoring Windsor, he wrote that “A summary dismissal is a merits determination and a lower federal court should not come to an opposite conclusion on the issues presented.” He disagreed with the majority’s affirmation that Utah’s marriage ban violated the Equal Protection Clause or the Due Process Clause. He also argued that marriage was not a fundamental right because “were marriage a freestanding right without reference to the parties,Utah would be hard-pressed to prohibit marriages for minors under 15 and imposeconditions for other minors.” He also appealed to “tradition” in disagreeing with the majority’s ruling:

First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries. Courts do not decide what is not before them. That the Court did not refer to a “right to interracial marriage,” or a “right to inmate marriage” cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United Stateshistory and tradition, and a careful and precise definition of the right at issue. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Thus, contrary to Plaintiffs’contention, Aplee. Br. at 34 n.5, it is entirely appropriate for the State to characterize the right sought as one of “same-gender marriage” and focus attention on its recent development. Perhaps someday same-gender marriage will become part of this country’shistory and tradition, but that is not a choice this court should make.

Judge Kelly’s dissent soon begins to look more like something from the Family Research Council in his willful refusal to acknowledge evidence in defending his position:

No matter how many times we are reminded that (1) procreative ability and effective parenting are not prerequisites to opposite-gender marriage (exclusion of same-gender couples is under-inclusive), (2) it is doubtful that the behavior of opposite-gender couples is affected by same-gender marriage (lack of evidence), (3) the evidence is equivocal concerning the effects of gender diversity on parenting (lack of evidence) and (4) the present scheme disadvantages the children of same-gender couples (exclusion is over-inclusive), the State’s classification does not need to be perfect. It can be under-inclusive and over-inclusive and need only arguably serve the justifications urged by the State. It arguably does.

…The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs oneither side to know that the State’s position is (at the very least) arguable. It mostcertainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe. Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, child-rearing, and caution rationales,that prerogative belongs to the electorate and their representatives. …(plurality opinion). We should resist the temptation to become philosopher-kings,imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.