United States v. Windsor, the Supreme Court’s landmark decision striking down the so-called Defense of Marriage Act, was not the clearest opinion the justices have ever produced. Although that opinion was firmly rooted in the Constitution’s guarantee of equality for all Americans, it contained just enough states’ rights language to give anti-gay lawmakers in the states some hopes that marriage discrimination could remain alive in conservative enclaves throughout the country. If a Utah federal judge’s opinion that was released Friday is upheld on appeal, however, there will no longer be any doubt that marriage equality belongs to all Americans. “The Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government,” Judge Robert Shelby concludes in his opinion striking down Utah’s ban on marriage equality — and this right applies to everyone. The same Constitution, Shelby explains “protects the choice of one’s partner for all citizens, regardless of sexual identity.”
Although Shelby largely relies on the argument that marriage is a fundamental right protected by the Constitution, he also made sharp nods towards the promise of equality. “Rather than protecting or supporting the families of opposite-sex couples,” he explains, Utah’s “Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition.”
Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.
Beyond Judge Shelby’s conclusion that marriage is a question of constitutional rights, not one of states’ rights — as he explains, “the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict” — Shelby’s opinion appears designed to tear down whatever intellectual infrastructure remains supporting marriage discrimination.
The leading argument advanced by supporters of discrimination in same-sex marriage cases is that marriage is necessarily tied to procreation, so same-sex couples can be excluded because they cannot produce biological offspring. Yet, as Shelby points out, the ability to procreate is not “a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Such an argument does not simply “demean the dignity” of same-sex couples, it also degenerates “the many opposite-sex couples who are unable to reproduce or who choose not to have children.” Indeed, under Utah’s argument for maintaining marriage discrimination, “a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate.”
Additionally, opponents of marriage equality who cheered Justice Antonin Scalia’s sharply worded dissent in Lawrence v. Texas — another landmark gay rights opinion — may come to regret Scalia’s words after reading Judge Shelby’s opinion. Scalia wrote in Lawrence that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Shelby’s opinion proclaims that Scalia was right.
It should be noted, however, that Shelby’s opinion is significantly less sweeping that Thursday’s marriage equality decision by the New Mexico Supreme Court. The New Mexico court unanimously held that “[b]ecause same-gender couples (whether lesbian, gay, bisexual, or transgender, hereinafter ‘LGBT’) are a discrete group which has been subjected to a history of discrimination and violence, and which has inadequate political power to protect itself from such treatment, the classification at issue must withstand intermediate scrutiny to be constitutional.” Thus, under the New Mexico decision, any anti-LGBT law will be subject to heightened constitutional scrutiny — and the New Mexico court explicitly included transgender individuals within the scope of its holding. Shelby’s opinion, by contrast, is largely focused on the right to marry.
Nevertheless, Shelby’s opinion is broad enough to extend the blessings of full marriage equality to all same-sex couples if it is upheld by the Supreme Court. In the meantime, however, it will need to be reviewed by the conservative-leaning United States Court of Appeals for the Tenth Circuit. So it will probably be quite a while before this case reaches the nation’s highest Court.