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


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4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.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.


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.


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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.