In a huge victory for advocates of equal access to marriage, a divided three-judge panel of the United States Court of Appeals for the 10th Circuit held today that Utah’s state constitutional ban on same-sex marriage violates the United States Constitution. The opinion, in Kitchen v. Herbert, affirmed the December 2013 decision of Federal District Judge Robert Shelby in Salt Lake City. The 10th Circuit thus becomes the first federal appeals court to so rule (several other circuits have cases in the works) and the decision continues the uninterrupted winning streak for marriage equality in the federal courts. Notably, the 65-page majority opinion, authored by Judge Carlos Lucero (a Clinton appointee), was joined by Judge Jerome Holmes (a George W. Bush appointee who is generally pretty far to the right but refused to vote for a stay of the lower court’s decision). Judge Paul Kelly (a 74-year-old George H.W. Bush appointee) dissented on the substance of the opinion.
As important as the result is the majority’s reasoning. The panel held that marriage, regardless of the sex or the sexual orientation of the putative marriage partners, is a fundamental right protected by substantive due process. Legislative distinctions that burden a fundamental right are subject to “strict scrutiny” by courts: they are invalid unless the “classification has been precisely tailored to serve a compelling governmental interest.” Opinion at 42 (quoting Plyler v. Doe, 457 U.S. 202, 216-17). Judge Kelly would have applied a much more lenient “rational basis” standard under equal protection law, rather than due process law, and would have found that the ban satisfied that standard.
The panel’s majority was willing to assume three of the state’s four proffered “compelling governmental interests,” which concerned promoting procreation, were in fact “compelling,” but found that the same-sex marriage ban was not sufficiently tailored to further them. After all, even if same-sex couples do not reproduce together physically, they often do have children through various means. In the meantime, the state does nothing to prevent marriage by opposite-sex couples who can’t, or won’t, procreate. In essence it’s a poor proxy. The majority outright rejected the fourth rationale offered: “accommodating religious freedom and reducing the potential for civic strife,” writing that “public opposition cannot provide cover for a violation of fundamental rights.” Opinion at 59.
The majority also explicitly rejected the argument that the Supreme Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), which held four decades ago that the same issue did not even present a serious justiciable question for federal courts, controlled the case. It found instead that the decisions in Lawrence v. Texas, 539 U.S. 558, 567 (2003) (declaring laws against homosexual sodomy unconstitutional) and, in particular, United States v. Windsor, 133 S.Ct. 2675 (2013) (declaring Section 3 of DOMA unconstitutional), had dramatically changed the legal landscape with respect to what is deemed a fundamental right for constitutional purposes. (In contrast, our own federal appeals court, the First Circuit, wrote as recently as the AG’s challenge to DOMA in 2012 that the 1972 Baker decision precluded consideration of whether a constitutional right to marry existed for same-sex couples. See Massachusetts v. U.S.Dep’t of Health & Human Servs., 682 F.3d 1,8 (1st Cir. 2012).)
The opinion left the stay of the lower court’s decision in place (the district court and 10th Circuit actually both declined to stay the original Utah decision, and the stay was imposed by the U.S. Supreme Court), so marriages won’t be happening all over the 10th Circuit just yet. If and when this decision takes effect, however, it would be binding precedent in Utah, Colorado, Wyoming, New Mexico, Kansas, and Oklahoma. But the issue is almost certain to reach the U.S. Supreme Court sooner rather than later (as in next year), so the question will almost certainly be decided in Justice Kennedy’s chambers. Still, today’s opinion is a huge milestone on the path to marriage equality across the whole United States. It’s a big deal.