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4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.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