"How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage Equality"
Friday’s decision by a federal judge overturning Utah’s constitutional ban on same-sex marriage (Amendment 3) represents the first major legal victory for marriage equality since the U.S. Supreme Court overturned the federal Defense of Marriage Act (DOMA). In that case, United States v. Windsor, the Court only addressed the question of federal recognition of marriage, and though procedural rulings in cases in other state have cited it, the Utah decision is the first time Windsor was cited to completely overturn a state law banning same-sex marriage. In an extremely readable opinion, Judge Robert Shelby — an Obama appointee whose nomination was supported by both Sens. Orrin Hatch (R-UT) and Mike Lee (R-UT) — explained not only why Windsor applied, but why the state’s arguments against same-sex marriage fell flat.
As is playing out in other suits across the country, both the plaintiffs — three same-sex couples — and the state cited Windsor in their arguments. According to Utah state officials, Windsor affirmed the right of states to choose how to define marriage, but the plaintiffs’ legal team pointed out that the case wasn’t actually decided on such federalism grounds. Instead, Justice Kennedy wrote that DOMA violated the Fifth Amendment, denying due process and equal protection to same-sex couples. In his opinion, Shelby noted that the 14th Amendment provides the same due process and equal protection at the state level, and just as they did for interracial couples in Loving v. Virginia, “individual rights take precedence over states’ rights where these two interests are in conflict.” Ironically, he went on to cite Justice Scalia’s dissent in the DOMA case to reinforce its impact in this regard.
In U.S. case law, equal protection has sometimes been applied through what’s called “heightened scrutiny” for some classes of people who might be targeted for discrimination, such as women or people of color. Thus, if a law is found to be unfairly affecting a group of people on the basis of their sex or race, as examples, the government is held to a higher standard to defend that law. Aside from a few lower court rulings, however, there is not federal precedent to apply heightened scrutiny to sexual orientation, and as Shelby noted in his opinion, he is bound by Tenth Circuit jurisprudence that decidedly did not apply such scrutiny. Thus, he could only consider Utah’s marriage ban according to a “rational basis review,” which basically means that if the government could provide any convincing justification for Amendment 3 — even if it’s not the purpose for which it was originally passed — then the law must be upheld. But, Shelby noted, heightened scrutiny was not necessary to impact the outcome of this case, because “the law discriminates on the basis of sexual identity without a rational reason to do so.” With Windsor in hand, he proceeded to unpack and dismantle each of the arguments the state made.
Claim: Same-Sex Couples Are Not Qualified To Marry Because They Cannot Procreate
Conservatives have long arbitrarily asserted that a limitation to man-woman unions is inherent in the very definition of “marriage,” suggesting that “same-sex marriage” is thus an oxymoron. Utah state officials offered their own variation of this claim, arguing that same-sex couples were not “qualified” to marry because they can not naturally reproduce with each other. Shelby observed that there are plenty of opposite-sex couples who cannot have children or choose not to, while at the same time there are over 3,000 same-sex couples already raising children in Utah. The state’s double standard played out humorously during oral arguments earlier this month, with Philip S. Lott representing Utah (transcript is abridged here):
THE COURT: Is it the state’s position that it would be constitutional, if the state chose to do so, to enact a regulation or law requiring that individuals who wish to marry submit to fertilization testing to prove that they’re capable of procreation? Is that constitutional? Because marriage — you’re relying on procreation as an essential characteristic of that union or that right? […]
LOTT: I don’t believe it would be constitutional, also because there is Supreme Court precedent saying that the right to not procreate is a fundamental right. So the state would not do that and would not be able to do that. […]
THE COURT: Before we leave that last hypothetical, let me pose it a different way and see if the answer is any different. Could the state of Utah constitutionally restrict marriage — deny marriage licenses say to post-menopausal women?
LOTT: I think the answer again is that the state’s interest in fostering procreation within certain parameters is not intended to exclude other relationships that potentially are going to involve raising a child. If you have a post-menopausal woman, she may not herself be able to have a child, but that doesn’t mean that she’s not going to have a grandchild that she may be in a position to need to raise or a niece or a nephew, and so the state’s interest is still present.
THE COURT: So is it something different than an individual’s actual ability to procreate? That’s not the fundamental characteristic? It’s the likelihood that the person may find themselves in the position of raising a child?
THE COURT: Okay. How are same-sex couples different in that respect?
LOTT: Well, a gay or lesbian person obviously can reproduce, but it’s not going to occur within a same-sex marriage. […] The simple answer to that is that procreation is the difference. A same-sex couple is not going to produce children.
THE COURT: Okay, so post-menopausal women in the state of Utah do not have a constitutional right to marry, as an example, or people who by virtue of surgical operations or genetics or whatever reason — if they can’t procreate, there’s not a fundamental right to marry. That’s the state’s view about the defining difference between the fundamental right that the plaintiffs are seeking here and those that are recognized by the Supreme Court?
In his decision, Shelby pointed out that the Supreme Court has recognized “important attributes of marriage that exist besides procreation,” which is why, for example, prison inmates have been allowed to marry even if they are unable to consummate their marriages. “These attributes of marriage,” he wrote, “are as applicable to same-sex couples as they are to opposite-sex couples.”
Claim: Same-Sex Marriage Is A “New Right”
Riffing on the claim that “marriage” only means — and has only ever meant — a man and a woman, Utah also argued that same-sex marriage is a “new right,” not the same “fundamental right” to marry that courts have previously affirmed. Comparing this case to Loving v. Virginia, which addressed the question of interracial marriage, Shelby noted that the right to marry includes the right to choose who to marry. Same-sex couples, he concluded, are seeking “the same right that is currently enjoyed by heterosexual individuals: 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.” Given that straight people are as unlikely to exercise the right to marry someone of the same-sex as gay people are to marry someone of the opposite-sex, both are “therefore simply manifestations of one right — the right to marry — applied to people with different sexual identities.”
Shelby couched this conclusion in his observation that much has been learned about homosexuality and the experience of people with same-sex orientations, which must be properly contextualized:
While it was assumed until recently that a person could only share an intimate emotional bond and develop a family with a person of the opposite sex, the realization that this assumption is false does not change the underlying right. It merely changes the result when the court applies that right to the facts before it. Applying that right to these Plaintiffs, the court finds that the Constitution protects their right to marry a person of the same sex to the same degree that the Constitution protects the right of heterosexual individuals to marry a person of the opposite sex.
In other words, there is no such thing as “gay marriage” or “straight marriage”; there is only marriage.
Claim: Tradition And History Have Always Recognized Marriage As Between One Man And One Woman
Shelby was quick to brush off the suggestion that historic understandings of marriage had any relevance in this decision. Referring to the Supreme Court’s decision in Lawrence v. Texas, which overturned laws criminalizing same-sex sexual relations (“sodomy laws”), he noted that the equal protection clauses in the Constitution did not specify which identities were protected and which were not:
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.
This assertion carries some of the same weight that a “heightened scrutiny” review would have: people with same-sex orientations exist, have a distinct place in society, and must be provided the same protections under the law in a context that fits those experiences.
Claim: Prohibiting Same-Sex Marriage Does Not Discriminate On The Basis Of Sex
In addition to arguing that the marriage amendment discriminates on the basis of sexual orientation, the plaintiffs also made the case that it discriminates on the basis of sex, because it prohibits a man from marrying another man but not from marrying a woman. The state replied that it does not discriminate as such because both sexes are equally prohibited from marrying the same-sex. Judge Shelby was not convinced by this claim, because the exact same argument failed when used in Loving to defend a ban on interracial marriage:
In Loving, Virginia argued that its anti-miscegenation laws did not discriminate based on race because the prohibition against mixed-race marriage applied equally to both white and black citizens. The Court found that “the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Applying the same logic, the court finds that the fact of equal application to both men and women does not immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex.
Because the amendment fails even on rational basis review, Shelby did not actually apply this consideration; he was simply making the point that he could have.
Claim: The Amendment Was Not Passed Out Of Animus Against Same-Sex Couples
Plaintiffs also argued that citizens voted for Amendment 3 “out of a dislike of gay and lesbian individuals,” and Shelby stopped short of agreeing with this, because “it is impossible to determine what was in the mind of each individual voter.” Nevertheless, he did conclude that the only purpose of Amendment 3 could have been to “impose inequality” upon same-sex couples:
First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality. Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage. This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.
Second, Amendment 3 has an unusual character when viewed within the historical context in which it was passed. Even though Utah already had statutory provisions that restricted marriage to opposite-sex couples, the State nevertheless passed a constitutional amendment t codify this prohibition. This action is only logical when viewed against the developments in Massachusetts, whose Supreme Court held in 2003 that the Massachusetts Constitution required the recognition of same-sex marriages. The Utah legislature believed that a constitutional amendment was necessary to maintain Utah’s ban on same-sex marriage because of the possibility that a Utah court would adopt reasoning similar to the Massachusetts Supreme Court and hold that the Utah Constitution already protected an individual’s right to marry a same-sex partner. Amendment 3 thereby preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.
The state may have argued there were a number of reasons to pass the amendment, and some voters may have even believed in those reasons and voted with “good intentions,” but the law was clearly passed for the sole reason of maintaining discrimination against the gay community.
Claim: Banning Same-Sex Marriage Promotes “Responsible Procreation”
The state also argued the old “responsible procreation” canard, the claim that marriage is really about incentivizing opposite-sex couples to marry if they get pregnant — especially if they do so unintentionally. Shelby found this argument to be meaningless because there was no evidence to suggest it was true. Moreover, he countered, this line of thinking actually encourages sexual activity outside of marriage:
The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.
Responsible procreation may be a valid goal, but banning same-sex marriage does not contribute to it.
Claim: Opposite-Sex Couples Make Better Parents
In their court briefs, the Utah state officials argued that the debate about same-sex parenting is still on-going, citing flawed studies by Mark Regnerus and Douglas Allen to suggest that same-sex couples might make inferior parents. “The optimal heterosexual parenting rationale,” they wrote, “is at least debatable,” but the “gold standard” is an intact, biological, married family. Judge Shelby did not even bother entertaining this so-called “dispute” about parenting, however, because it wasn’t even relevant to the marriage debate:
There is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples. The State has presented no evidence that Amendment 3 furthers or restricts the ability of gay men and lesbians to adopt children, to have children through surrogacy or artificial insemination, or to take care of children that are biologically their own whom they may have had with an opposite-sex partner. Similarly, the State has presented no evidence that opposite-sex couples will base their decisions about having children on the ability of same-sex couples to marry. To the extent the State wishes to see more children in opposite-sex families, its goals are tied to laws concerning adoption and surrogacy, not marriage.
Shelby went on to highlight that the amendment actually runs counter to the state’s goals of protecting children because it limits the support available to the 3,000 children already being raised in Utah by same-sex couples — just like, as Justice Kennedy wrote, DOMA “humiliates” the children of same-sex couples.
Claim: It’s Important To Proceed With Caution On Same-Sex Marriage
The state argued it was important to proceed with caution, because “no one knows right now the precise impact same-sex marriage will have on traditional marriage, children, and society at large.” Shelby was unconvinced, noting that the state could not cite “any evidence to justify its fears.” Moreover, if “proceed with caution” were a worthy argument, the government could use it every single time a law was challenged, which “would turn the rational basis analysis into a toothless and perfunctory review.”
In the conclusion of his decision, Shelby was anything but cautious when it came to explaining the harm done by the Amendment:
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.
The Only Argument Left: The People Voted
The state of Utah has indicated that it will appeal the decision and has filed for an emergency stay, but that stay might not be considered for several days. In the meantime, same-sex couples are free to continue marrying, as over a hundred already have. Reacting to the decision, Gov. Gary Herbert (R) expressed his disappointment that “an activist federal judge is attempting to override the will of the people of Utah.” The National Organization for Marriage’s Brian Brown similarly decried it as a “travesty of justice,” proclaiming that “this trend of vetoing the voters from the bench must be stopped.”
It is true that the people of Utah voted to pass Amendment 3. It is also true that the 14th Amendment of the Constitution was ratified by the states and is now part of the federal law that governs this entire country, including state constitutions. If banning same-sex marriage is indeed the will of the people as these opponents claim, decisions like Judge Shelby’s suggest it may now only be possible by amending the U.S. Constitution, a tactic that has failed multiple times and has less traction in Congress now than it ever did before.
(HT: Kathleen Perrin.)