Utah may be the 18th marriage equality state, although it is becoming difficult to figure out how to number them. Today (December 20), U.S. District Judge Robert J. Shelby granted an injunction to the plaintiffs in Kitchen v. Herbert, 2013 Westlaw 6697874, a federal constitutional challenge to Utah’s statutory and state constitutional ban on same-sex marriage. Shelby, who was appointed by President Barack Obama, ruled that the right of same-sex couples to marry is a “fundamental right” under the 14th Amendment, and that the state had shown no rational basis to deny this right to same-sex couples. Shelby did not stay his order, and the Salt Lake County Clerk’s office began issuing marriage licenses to same-sex couples shortly after the decision was announced, although the Attorney General filed a notice of appeal to the U.S. Court of Appeals for the 10th Circuit later in the day.
According to a report in BuzzFeed.com, an Assistant Attorney General called Judge Shelby to request a stay of his ruling pending appeal, but was told that such a request would have to be in the form of a written motion to which the plaintiffs could respond, which inevitably meant it could not be considered and ruled upon until next week. Then it was reported that the Attorney General’s office contact the 10th Circuit, seeking an “emergency” stay. Their argument was, at least as reported, that a stay was necessary to “preserve the status quo” of the ban on same-sex marriages until an appellate court could review the decision. Failure to stay was argued to be an “emergency” because same-sex couples had started getting married, and if Shelby’s ruling was overturned on appeal, those marriages would be void. What makes this an “emergency” is difficult to discern. The grounds for granting a stay pending appeal would be that appellant is likely to succeed on the merits, that failure to stay the ruling would cause irreparable injury to the appellant, that the harm to the appellant would exceed the harm to the respondent if the decision were stayed, and that the public interest would be advanced by a stay. One speculates that the Attorney General would fall down on one or more of these steps, but it would not be shocking were the 10th Circuit to grant a stay, just unfortunate.
Two Utah lawyers, Peggy Tomsic and James E. Magleby, filed suit on behalf of three same-sex couples, two of which had been denied marriage licenses by county clerks, while the third couple was married in Iowa and is seeking recognition of their marriage in their domicile state of Utah. The case moved quickly to summary judgment, the cross-motions being argued just weeks ago. Judge Shelby’s opinion may be the first ruling to reference yesterday’s marriage equality ruling by the New Mexico Supreme Court, in a footnote listing the states that have adopted marriage equality through court decisions. It is definitely the first federal court ruling since the Supreme Court’s decision in U.S. v. Windsor to hold that same-sex couples have a federal constitutional right to marry, guaranteed by the 14th Amendment’s due process and equal protection clauses.
Shelby found that Windsor made clear, as cumulative to prior Supreme Court decisions, that the Supreme Court’s 1972 ruling in Baker v. Nelson holding that the issue of same-sex marriage did not present a substantial federal question was no longer a binding precedent on lower courts. He pointed out that the Supreme Court has said that a disposition on that ground ceases to be binding on lower courts when subsequent developments in case law render it obsolete. Shelby found that many Supreme Court cases decided since the 1970s, considered cumulatively, have created a substantial federal question. He also stated his agreement with Justice Antonin Scalia’s statement, in his dissenting opinion in Windsor, that “the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion is that DOMA is motivated by ‘bare desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” Wrote Shelby, “The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
Turning to the plaintiffs’ due process challenge, Shelby traced the history of Supreme Court treatment of marriage, showing that the high court has consistently treated the right to marry as a fundamental right. He pointed out that the state did not deny that all citizens, including gay people, have the fundamental right to marry, but the state had made the absurd argument that gays are not deprived of this right in Utah, because they can marry partners of the opposite sex, so their “liberty” interest in marriage is not impaired. “But this purported liberty is an illusion,” wrote Shelby. “The right to marry is not simply the right to become a married person by signing a contract with someone of the opposite sex. If marriages were planned and arranged by the State, for example, these marriages would violate a person’s right to marry because such arrangements would infringe an individual’s rights to privacy, dignity, and intimate association. A person’s choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment. The State’s argument disregards these numerous associated rights because the State focuses on the outward manifestations of the right to marry, and not the inner attributes of marriage that form the core justification for why the Constitution protects this fundamental right.” By contrast, the plaintiffs had shown that the “right to marry” as framed by the state was, for them, “meaningless.”
Shelby rejected the state’s argument that same-sex couples are not “qualified” to marry because they can’t procreate children, holding that such capacity “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Indeed, he found that such a view of marriage “demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have a children,” but are allowed to marry by Utah. Premising the right to marry on the ability to reproduce “is irreconcilable with the right to liberty that the Constitution guarantees to all citizens,” he wrote.
He also rejected the state’s argument that the plaintiffs were seeking some new right of “same-sex marriage,” as opposed to the simple right to marry that is a well-established fundamental right. “The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals,” he wrote, “the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” He also rejected the idea that the right at issue could not be fundamental because it never been construed in the past to extend to same-sex couples, commenting, “The Constitution is not so rigid that it always mandates the same outcome even when its principles operate on a new set of facts that were previously unknown. Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the State, must adapt to this changed understanding.”
Concluding on the due process point, Shelby focused on the Supreme Court’s Lawrence v. Texas opinion, where Justice Anthony Kennedy wrote that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and held that “persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Justice Scalia’s dissent had seized upon this statement to complain that the decision had opened the door to same-sex marriage, and again Judge Shelby found himself in agreement, writing, “The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.”
Since the court was dealing with a fundamental right, strict scrutiny would apply, and the burden would fall on the state to prove that it had a compelling interest in denying same-sex couples the right to marry, but Judge Shelby did not find it necessary to go that route, since he concluded that none of the arguments the state made in seeking to justify the exclusion was rationally related to any of the legitimate interests it mentioned. In this part of the opinion, Shelby’s arguments were strikingly similar to those made by Justice Edward Chavez of the New Mexico Supreme Court in yesterday’s opinion. Indeed, Shelby found that some of the interests the state articulated were actually harmed by banning same-sex marriage, especially when it came to child-rearing.
Turning to the equal protection challenge, Shelby said he was bound by 10th Circuit precedent to treat sexual orientation discrimination under the rational basis test, even if an argument could be made for heightened scrutiny on this basis. He noted that this case could be analyzed as a sex discrimination case, thus meriting heightened scrutiny under the Supreme Court’s precedents. But, having already found in his due process analysis that Utah lacked a rational basis for excluding same-sex couples from marriage, he didn’t have to use any higher standard of review to dispose of the case. He also noted that the Supreme Court in Romer v. Evans and U.S. v. Windsor seemed to be taking a different approach to equal protection entirely, asking whether a challenged law had the purpose and effect of discriminating in some unusual way, in which case something more demanding than traditional rational basis review would be required, but he said that the Supreme Court had not provided clear guidance to lower courts about how to apply this new method of analysis.
Applying rational basis review, as noted above, Shelby concluded that there was no rational basis. Summarizing his analysis, he wrote, “In its briefing and at oral argument, the State was unable to articulate a specific connection between its prohibition of same-sex marriage and any of its stated legitimate interests. At most, the State asserted: ‘We just simply don’t know.’ This argument is not persuasive. The State’s position appears to be based on the assumption that the availability of same-sex marriage will somehow cause opposite-sex couples to forego marriage. But the State has not presented any evidence that heterosexual individuals will be any less inclined to enter into an opposite-sex marriage simply because their gay and lesbian fellow citizens are able to enter into a same-sex union. Similarly, the State has not shown any effect of the availability of same-sex marriage on the number of children raised by either opposite-sex or same-sex partners.” Shelby also referred to an amicus brief that had been filed by LGBT litigation groups in the 9th Circuit in the Proposition 8 case, in which data from states that had allowed same-sex marriage, beginning with Massachusetts in 2004, had not shown any adverse impact on the rate of opposite-sex marriage or divorce.
Having concluded that the ban on same-sex marriage is unconstitutional, Shelby found that his disposition of the case rendered the question of recognition of same-sex marriages from other states moot. “Utah’s current laws violate the rights of same-sex couples who were married elsewhere not because they discriminate against a subsection of same-sex couples in Utah who were validly married in another state,” he wrote, “but because they discriminate against all same-sex couples in Utah.”
Shelby granted the plaintiffs’ motion for summary judgment, and denied the state’s motion. “The court hereby enjoins the State from enforcing Sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, Section 29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex,” he concluded. He made no mention of a stay, and having issued his decision on a Friday afternoon, he virtually guaranteed that the state would not be able to get a stay from the 10th Circuit in time to prevent same-sex couples from seeking marriage licenses. Confronting this reality, the clerk’s office in Salt Lake City started issuing licenses to same-sex couples shortly after the decision was announced. It seems likely that the state will seek review, but this decision hitting at the start of the holiday season might introduce an element of delay. Perhaps Shelby was timing his ruling strategically, as he had indicated at oral argument that he hoped to have a decision by sometime in January. Perhaps the New Mexico Supreme Court’s ruling goaded him into hurrying up and getting his opinion out quickly. His celerity puts to shame the district judge in Oklahoma who has been sitting on a same-sex marriage case for nine years!