Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | News | Utah

What Was So Remarkable About the Tenth Circuit's Decision Striking Down Utah's Gay Marriage Ban

BY ARI EZRA WALDMAN

6a00d8341c730253ef01a511d4c82a970c-800wiTo regular Towleroad readers, Judge Lucero's opinion holding Utah's ban on same-sex marriage unconstitutional reads like so many other equality rulings in the post-Windsor world. But the June 25th decision is still remarkable and unprecedented. Kitchen v. Herbert did not just say banning gays from marrying is unconstitutional. Rather, it said the law is unconstitutional specifically because of Windsor

The opinion has all the trappings of many of the district court decisions that preceded it. First, the Court addressed the standing of the parties (the Governor and Attorney General of Utah) to appeal. I won't spend any time on that section except to say, they do have standing. Second, the court dispatched the Baker v. Nelson canard. As courts have argued countless times in the last 4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe. 

But the way the Baker argument got resolved was new. Utah, which was represented in Court by my old boss at Winston & Strawn LLP, Gene Schaerr, argued that the very principles of federalism and the separation between the federal government's role and the role of state governments that were reaffirmed in Windsor mandate that the Tenth Circuit hold to the Baker dismissal. In other words, Utah was acknowledging that the world has changed since 1971, a concession that the Prop 8 proponents and those supporting the Virginia gay marriage ban have refused to make. However, despite those cataclysmic changes, Utah argued that Windsor reminds us of the danger of the federal government intruding into the exclusive realms of the state. Therefore, since marriage is traditionally a state issue, the federal judiciary should stay out of a state's decision to discriminate against gays in that exclusive state matter.

The problem with this unique argument is that it is just plain wrong, derived, as it is, from a selective reading of Windsor. Justice Kennedy did indeed pay homage to the federalism concerns raised by the Defense of Marriage Act (DOMA). For the first time ever, Congress had created a federal definition of marriage and no longer just accepted whatever the states had deemed as legitimate marriages. But, as I argued previously, the federalism discussion was merely a tool to show Congressional overreach and a reason for the federal courts to take more than a mere cursory once-over of the law. DOMA's federalism problem inspired Kennedy to be more critical of Congress's antigay motives and actions, which he found in violation of the federal constitution. It did not cause him to deny the federal role entirely.

CONTINUED, AFTER THE JUMP...

6a00d8341c730253ef01a511d5563f970c-250wiJudge Lucero then moved to the substance of the case and found that the right to marry is a fundamental right under the Fifth and Fourteenth Amendments.

In response to the suggestion that the "fundamental" right is a heterosexual one, the court reminds us that the right to marry is found in "persons" and has been applied with sufficient generality to include all different kinds of persons: not just white persons, but also black persons; not just free persons, but also those who are incarcerated; not just rich persons, but also poor persons; and so on.

Nor did the marriage right come along with a natural, biological ability to procreate. Instead, the court quoted the Supreme Court case of Turner v. Safley, which allowed inmates to marry. The importance of marriage is wide and varied, irrespective of an ability or right to procreate:

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

And, it goes without saying, independent of and unaffected by the biological ability to have sex with one another and produce a child.

Perhaps the most important part of the Tenth Circuit's decision begins at around page 34, where Judge Lucero continues to address the nonprocreative prerequisite of the marriage right and transitions to the impact Windsor has had on whether the fundamental marriage right extends to gay persons. Sure, there had been several pre-Windsor courts that concluded that gays marrying could not be a fundamental right. But in the post-Windsor world, that could no longer be the case. Rights are exercised by persons, not by gay persons or heterosexual persons. The right to marry is still a right to marry no matter who is wearing the suit and dress.

6a00d8341c730253ef01a73dcd68ab970d-150wiThat argument would have been a lot harder before WindsorIn his opinion, Justice Kennedy asserted that gay persons, and their marriages, are entitled to the same equal dignity attached to heterosexual persons and their opposite-sex marriages. It is of no moment how a state wants to define the word "marriage." No matter what its voters may have said, the fundamental right to marry cannot be legislated away from a discrete group simply because voters don't like that group. It remains the individuals' fundamental right.

Judge Lucero's opinion is a gay rights lawyer's dream. It takes us through the Supreme Court's and other federal courts' gay rights jurisprudence and applies it to the question at hand, smacking down Utah's outdated arguments one by one. It also explains how Windsor has made the gay rights advocate's work much easier. It shows, therefore, how one victory builds on the last victory and helps create the next one. We have built a solid foundation of freedom and equality and the Tenth Circuit's opinion both reflects it and builds upon it.

The question is: What happens now?

Stay tuned for continued coverage of this case (including the dissent) and next steps.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. I really appreciate Ari's legal posts. They are so thoughtful and urbane - a very welcome addition to the Towleroad stable.

    Posted by: Sergio | Jul 1, 2014 7:51:03 PM


  2. After reading Ari, I feel that even I, having had exactly one business law course, mumblety-mumble years ago, could explain why the 10th Circuit ruling was important. I guess the Clerk in Boulder, CO had more law courses. lol

    Posted by: ben~andy | Jul 1, 2014 8:13:12 PM


  3. I wonder if SCOTUS will take up the Utah case for review. I don't believe there are any other Federal circuits that have (yet) reached the opposite conclusion. So SCOTUS may take a pass on this one until such a conflict arises. Or would SCOTUS grant cert for any other reason?

    Posted by: Drew | Jul 1, 2014 9:53:57 PM


  4. I had this written better, but lost it.

    It depends on if either side thinks Kennedy would vote "with them". FOUR Justices vote to grant Cert. FIVE Justices decide a case.

    The kicker is actually that we keep WINNING. If we "run the table" and WIN in ALL of the Circuit Courts of Appeal, then if the SCOTUS doesn't grant Cert, then it is marriage everywhere, so the conservatives really have nothing to lose.

    The opposite kicker is if one of the CCofA finds AGAINST marriage equality. Now there is a disagreement amongst the Circuits and it is SCOTUS who's job it is to iron that out.

    See, something can't be both unconstitutional in one place and constitutional in another. That is the very definition of "inequality before the law". So then they really HAVE to take it and decide the issue. This is a way to win big or lose big. And it still all depends on Kennedy because I just don't think the very closeted Chief Justice is gonna side with the liberals like he did on Obamacare.

    Posted by: ben~andy | Jul 2, 2014 1:03:20 AM


  5. But the point I made in the "lost post" was that Kennedy wrote so very carefully in WINDSOR that the states decide, as long as what they decide isn't unconstitutional. This is the whole basis of the LOVING vs. VIRGINIA arguments. That case decided it was unconstitutional for any STATE to decide that a black person and a white person couldn't get married.

    So, Kennedy has said BOTH things, side by side. I think it was even in the same sentence. But that doesn't tell anyone really how he'd actually vote. On the other hand, he's given us the dissent in Bowers vs. Hardwick [upheld sodomy laws] and the rulings in Romer vs. Evans [overturned Colorados anti-gay amendment], LAWRENCE VS TEXAS [overturned Bowers and all remaining sodomy laws] and finally WINDSOR VS US [as she so delightfully reminds us, she sued the US Government, and won].

    Kennedy wrote Romer in 1996, Lawrence in 2003 and Windsor in 2013. This guy has written ALL of the Federal law on Gay Rights at SCOTUS. Only the 9th Circuit decision in SmithKline v. Abbott Labs that determined that we're a suspect class and hasn't yet gone to the Supremes hasn't had Mr. Justice Kennedy's magic touch.

    We are just a "generation" [18 years] away from Romer. Let us hope this St. Anthony stays on our side. There are 9 historical St. Anthony's. None of them ever did a damn thing for us. San Antonio de Padua, a franciscan, was known for his preaching and is the patron saint of lost things and people. The mission in California named for him is in the middle of nowhere, which is where we'd be w/o our own Anthony.

    And I'm not Catholic or even Christian. But this pagan/shaman is more than willing to go with what works.

    Posted by: ben~andy | Jul 2, 2014 1:34:21 AM


  6. I love reading Ari's analyses. So clear and simple. Thank you! I dare say I love you!

    Posted by: matt | Jul 2, 2014 1:55:30 AM


  7. Sorry, Kennedy didn't write the dissent in Bowers v. Hardwick in 1986, since he wasn't appointed to the court until 1988 by Ronald Reagan [I really think that is the ONE good thing the man did] and he was the man who sailed through confirmation with a 97-0 vote of the Senate. Robert Bork was the 1st man up for that seat and foundered. During the hearings, the following, written by Kennedy and published the year before, was read aloud. It would give one pause except for the many cases he's written since in our favor.....

    "One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision—wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process."

    Posted by: ben~andy | Jul 2, 2014 2:42:59 AM


  8. Andy, I've noticed that Towleroad regularly has dead "after the jump" links, like the one in this article. Many people may not be clever enough to be able to find the rest of the article and give up in frustration. I just thought you should know this so you can try to correct what seems like a systemic problem.

    Posted by: Randy | Jul 2, 2014 2:47:23 AM


  9. @Randy-- Agree. It happens WAY to often on this site.

    Posted by: Cran | Jul 2, 2014 9:21:14 AM


  10. "For the first time ever, Congress had created a federal definition of marriage and no longer just accepted whatever the states had deemed as legitimate marriages."

    Not true. The federal government outlawed polygamy in the late 19th century as a response to the new Mormon settlement in Utah.

    Posted by: Alan | Jul 2, 2014 11:55:44 AM


  11. @ALAN, I don't recall the government outlawing polygamy. What I recall (and if I'm wrong, please correct me) is that the federal government told Utah that they must outlaw polygamy or they wouldn't become a state (they had been denied before.) Specifically Utah had to ban polygamy in its state constitution.

    Thus, Congress didn't create a federal definition of marriage, per se.

    Posted by: Rrhain | Jul 2, 2014 3:40:30 PM


  12. This is all fine and dandy, Mr. Waldman, but this analysis is a punt instead of a touchdown. Here's a challenge for you: how about an analysis of the disastrous SCOTUS decision re: Hobby Lobby? That allegedly "narrow" decision has opened up so many loopholes for corporations and for private companies to ignore a whole host of laws once they declare them against their "deeply-held religious beliefs" that that decision may end up setting back the 60+ years of struggle to achieve not just marriage equality but civil equality. And not just for LGBT people but for American women as well.

    Get off your butt and do some REAL analysis. The Hobby Lobby decision is the REAL danger to us all in the long run.

    Posted by: jamal49 | Jul 3, 2014 12:50:12 PM



  13. @jamal49: thank you for your comment. im sorry you must have missed my earlier, timely post on the Hobby Lobby decision. It can be found here: http://www.towleroad.com/2014/06/supreme-court-limits-obamacares-contraception-coverage.html. Happy 4th of July weekend.

    Posted by: Ari Ezra Waldman | Jul 3, 2014 3:22:48 PM


  14. since corperations are people now, can they get married? and are they not able to be polygamous?

    Posted by: Dan | Jul 6, 2014 6:07:45 PM


  15. Here's where the 10th Circuit's (and thus Ari's) analysis falls flat:

    (Quoting Turner v. Safley) "Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated."

    Which gives the lie to Ari's "And, it goes without saying, independent of and unaffected by the biological ability to have sex with one another and produce a child."

    Posted by: TKinSC | Jul 7, 2014 6:07:38 PM


  16. Let's consider Holmes concurrence, and his discussion of "animus doctrine", which I haven't heard in any other of our cases.

    Holmes seems to want to have it both ways... and the lady doth protest too much as well
    (a) "animus" can only apply to hostility, not simply the lack of a rational reason, BUT
    (b) in a voter-enacted amendment, we dare not look at voter motivations. After all, the vote was 1,075,216 to 347,303 and there simply can't be that many haters in Oklahoma.

    (Has Holmes ever been to Oklahoma?)

    So we can only look at whether the law has unusual character. But it's not unusual for states to ban same-sex marriage. BUT, they only needed to ban this most fundamental of rights once our EXISTING constitutional right (the right to marriage) started to be recognized by other states.

    "the plaintiffs’ rights with respect to
    marriage—or lack thereof—were the same before the ban as after."

    This is plainly false. The fundamental right to marriage, a broad right not based on who exercises it, has existed for centuries. The ban attempted to remove that right. The fact that RECOGNITION of the right didn't change is irrelevant.

    Obviously Oklahoma wasn't going to enact Colorado's Amendment 2 which was already ruled unconstitutional. This was the maximum it thought it could do to strike at gay people in their homes and lives.

    The discrimination IS unusual in that it chooses which "state of celebration" marriages Oklahoma isn't going to recognize (same-sex). But we don't even get to THAT place because due to Holmes STANDING analysis (i.e. NO standing because they sued the wrong state official on the advice of the court) the recognition part of this case is dismissed.

    Posted by: Randy | Aug 2, 2014 12:58:51 AM


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