Utah Governor Gary Herbert and Attorney General Sean Reyes filed their petition for certiorari with the United States Supreme Court on August 5, seeking review of the 10th Circuit Court of Appeals’ ruling in Kitchen v. Herbert. At the Supreme Court, the case would be called Herbert v. Kitchen. The 10th Circuit ruled on June 25 that Utah’s ban on same-sex marriage violated the 14th Amendment by depriving same-sex couples of the fundamental right to marry without sufficient justification.
Utah’s counsel of record, Gene C. Schaerr and John J. Bursch, have put together a certiorari petition that is well-calculated to persuade the Court that they should take the case. They have position this as a federalism case. Their main “pitch” to the Court is that the task of defining marriage is left under our constitutional scheme to the states, and that federal courts should not dictate how that term is to be defined. This is reflected in their wording of the question presented to the Court: “Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”
They build on Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor, in which he posited that there are essentially two conceptions of marriage in the United States today, an adult-centric version and a child-centric version, and that the question which of these concepts to embrace should be left to the political processes of the states under a constitutional scheme which has traditionally left the details of domestic relations law to the states. They come back numerous times to Justice Anthony Kennedy’s statements in his opinion for the Court in Windsor that the definition of marriage has traditionally been left to the states, and that for almost all of our history that definition has limited marriage to the union of a man and a woman, and they emphasize the Court’s holding in Windsor that the constitutional flaw in Section 3 of the Defense of Marriage Act was that Congress had failed to defer to state decisions to allow or recognize same-sex marriages.
In other words, this Petition does not demonize gay people or employ homophobic language. It is carefully written to avoid comments that might be deemed hostile, and emphasizes that both the trial judge in this case, Robert Shelby, and the 10th Circuit panel, had specifically found no evidence that Utah’s ban on same-sex marriage was enacted out of animus against gay people. Rather, they argue, Utah’s ban, most recently enacted as a constitutional amendment a decade ago, was a decision by the people of the state to embrace a child-centric concept of marriage, under which the procreative potential of different-sex marriage was its defining feature and linking children with their biological parents the main purpose.
The purpose of a petition for certiorari is to persuade the Court that there is an important federal question that requires national resolution. This is an easy argument to make in light of the current litigation situation. They list all the states in which marriage equality litigation is pending — a very impressive list of 32 states — and also emphasize that hundreds of same-sex couples were married in several of these states when trial courts did not stay their rulings and some time elapsed until appellate courts could restore the “status quo” by staying the decisions pending appeal. As a result, there is collateral litigation about the validity of those marriages that would be resolved by a ruling on the merits by the Court.
They point out that the Court has already decided recently that marriage equality is a decision requiring its attention, when it granted certiorari in December 2012 in Hollingsworth v. Perry, the Proposition 8 case from the 9th Circuit. Although the Court ultimately decided that the petitioners’ standing in that case precluded a decision on the merits, it had granted certiorari on the same question presented in this case, so it had already decided recently that a federal court decision striking down a state ban on same-sex marriage presented a pressing federal question. They also note that the Utah litigation has already generated two stays from the Supreme Court: first, staying Judge Shelby’s decision in January 2014, and then more recently staying Judge Kimball’s decision in Evans v. Herbert concerning the validity of the marriages performed during the interval between Judge Shelby’s decision and the Supreme Court’s stay of that decision. In issuing a stay, the Court makes an initial determination that the case is likely to be worthy of Supreme Court review, with a possibility that it would be reversed. Thus, they argue, the Court has already decided, preliminarily, that this is a case that likely merits review.
Finally, they argue that there is a split of authority that needs resolution by the Court. They note Baker v. Nelson, the Supreme Court’s determination in 1972 that the Minnesota Supreme Court’s rejection of a 14th Amendment claim for marriage equality did not present a substantial federal question, even in light of the Court’s recent ruling against anti-miscegenation laws in Loving v. Virginia. They contend that Baker v. Nelson was still binding and that the 10th Circuit erred in failing to follow that precedent. They argue that the method used by the 10th Circuit to reach its decision that a fundamental right is involved in this case violates the methodology approved by the Court in Washington v. Glucksberg in 1997, and that it violates the Court’s statement last year in U.S. v. Windsor that the federal government must defer to the states in defining marriage. Finally, they note a split from the 8th Circuit’s pre-Windsor ruling in Citizens for Equal Protection v. Bruning, which had rejected an equal protection challenge to a same-sex marriage ban in a somewhat different context.
They argue that this case, the first in the door from the current wave of marriage equality litigation, is also the “ideal vehicle” for the Court to use in deciding the marriage equality question. First, the Court is already familiar with this litigation from considering and granting two stay petitions. Second, the petitioners are vigorous proponents of the child-centric marriage concept. Third, the findings of the courts below that Utah did not act out of animus left the Court free to focus on the “pure legal question” rather than being distracted by the animus findings in some of the other pending marriage equality cases. Fourth, they argue that the courts below were “unusually clear in embracing the adult-centric concept as the basis of their holdings that the fundamental right to marriage includes the right to marry someone of the same sex,” thus highlighting the clash of philosophy that is at stake. Fifth, they note that unlike some of the other marriage equality cases now pending, this one presents both the issues of the right to marry and of recognition of out-of-state marriages, so it would provide a vehicle to address both issues in one case. Sixth, there are no standing issues to prevent the Court from reaching the merits. Seventh, “there is no need to let the issue percolate even more” in light of the litigation history and the U.S. Attorney General’s announcement that he will support the plaintiffs when the Court next takes up the marriage equality issue. Finally, they emphasized that counsel on both sides of the case “are experienced and capable.” (Counsel for the Respondents include Peggy Tomsic, who presented a brilliant oral argument at the 10th Circuit, and attorneys from the National Center for Lesbian Rights, whose Legal Director, Shannon Minter, triumphed in the oral argument on marriage equality before the California Supreme Court back in 2008.)
“The harm in waiting is significant,” they argue, “regardless of which side prevails. Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the People ratified the Constitution. This Court should grant the petition and answer, once and for all, the important question presented.”
They close with a strong summary of their argument on the merits: “Promoting marriage as an institution designed to honor every child’s fundamental right to know and be raised by a mother and father does not ban any other type of relationship. But rewriting the Constitution to impose the Tenth Circuit’s marriage definition on every single State has consequences. It communicates that the marriage institution is more about adults than children. It teaches that mothers and fathers are interchangeable and therefore expendable. And it instills an incentive that citizens seeking social change should use the courts, rather than the democratic process, to achieve it. For all these reasons, the Court should grant Utah’s petition and reverse the Tenth Circuit.”
Throughout the petition Schaerr and Bursch make arguments and use vocabulary that could be sharply contested by marriage equality proponents. Their goal in this document, however, is primarily to persuade the Court to take their case, and that should not be difficult in light of the prior certiorari grant in the Proposition 8 case. One suspects that the Plaintiffs’ response to the Petition will not differ from the Petitioners on that primary goal, since they want a Supreme Court merits ruling that will finally lift the stay and allow same-sex marriages in Utah, but they will sharply counter many of the assertions concerning the merits.
To this reader, the suggestion by Justice Alito, adopted as a central point in this Petition, that there are two conceptions of marriage, adult-centric or child-centric, is absurd. A strict binary is a distortion of reality and of the stakes in this litigation. The Petitioners argue as if the decision to deny marriage to same-sex couples has no serious consequences for the children they are raising., and they seek to minimize any such consequence by asserting that relatively few same-sex couples raise children by comparison to opposite-sex couples, which is demographically faulty. They contradict themselves at numerous points, but most seriously in suggesting that allowing same-sex couples to marry is all about the adults and ignores the interests of their children. They also argue as if there is not a decade of experience with same-sex marriage in Massachusetts that can serve to challenge their speculations about the impact that allowing same-sex marriage would have on heterosexuals in terms of “signaling” that heterosexual marriage is not important or desirable to provide a setting for raising children. (There is similarly a decade of experience from Canada and the Netherlands, if that be deemed relevant, as it should be.) If this is really all about the children, as they argue, then — as virtually all the courts that have considered the matter over the past year have concluded — the interests of the children being raised by same-sex couples must be taken into account, as Justice Kennedy suggested during the oral argument in Hollingsworth v. Perry and forcefully asserted in the Windsor opinion. They similarly misrepresent the Supreme Court’s marriage precedents by the sin of omission. They suggest that the Supreme Court’s view of marriage as a constitutional right has been the child-centric view, when in fact the Court has specifically found a constitutional right to marry to be present in the case of prisoners who are not entitled to conjugal visits — a case in which the Court provided a list of adult-centric reasons for finding that right to trump the state’s contrary arguments.
But my reflections now go to the merits; for now the merits are secondary to the question whether the Court will take the case. This Petition makes a very strong pitch, and it is difficult to believe that it would not attract the votes of at least the four members of the Court necessary to grant review. By the time they decide whether to grant review, they will also have petitions on file from court clerks in Oklahoma and Virginia, and, depending how quickly the 6th Circuit takes action in the cases being argued on August 6, perhaps from as many as four other states. The possibility that the Court would put off taking a marriage equality case until next term seems remote.