In the first federal appellate level consideration of same-sex marriage since the Supreme Court overturned the Defense of Marriage Act last year, the 10th Circuit has agreed with the lower court that Utah’s ban on same-sex marriage is unconstitutional. In a 2–1 decision, the panel ruled that the Constitution guarantees that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as it is recognized by persons who wish to marry a person of the opposite sex.”
The ruling was immediately stayed, recognizing that the Supreme Court had stayed the district court’s original ruling earlier this year.
The majority of the panel rejected the state’s arguments that marriage must be linked to procreation: “Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction.” They were also not persuaded by claims that the inherent definition of marriage demanded unions between a man and a woman, because “nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages.”
“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized,” they wrote. “We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box.”
In his dissent, Judge Paul Joseph Kelly, Jr., a George H. W. Bush appointee, argued that the Supreme Court’s rulings in Windsor and past gay rights rulings “simply have not created a fundamental right to same-gender marriage.” He found plausibility in the state’s rationales for banning same-sex marriage, including “(1) encouraging responsible procreation given the unique ability of opposite-gender couples to conceive, (2) effective parenting to benefit the offspring, and (3) proceeding with caution insofar as altering and expanding the definition of marriage.” Because same-sex couples cannot biologically procreate, the state has a rational reason for treating them differently.
Even though same-sex couples may have children, Kelly reasoned, “far more opposite-gender couples will produce and care for children” and “perpetuation of the species depends upon procreation.” Thus, “consistent with the greatest good for the greatest number,” the state can choose to believe that opposite-gender parents are better and incentivize that outcome. He was not convinced there was sufficient evidence to suggest otherwise, and “we should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”
(HT: Kathleen Perrin)