August 27, 2014

Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.

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  1. […] regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of […]

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