Yesterday, the Tenth Circuit upheld Judge Shelby’s decision and ruled that Utah’s marriage bans are unconstitutional. In so holding, the court ruled that marriage is a fundamental right and that any deprivation of this right is subject to strict scrutiny. Since this is the first circuit court decision on the issue since Windsor, the opinion provides an especially instructive interpretation of that case, as well as a potential framework for future circuit-level decisions on the issue consistent with Supreme Court precedent.
The court began by framing the question presented as whether “a State of the Union [may] constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry,” and clearly and unequivocally held that “consistent with the United States Constitution, the State of Utah may not do so … the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. 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.” (p. 3)
The court held that “[t]here can be little doubt that the right to marry is a fundamental liberty” for all people based on prior Supreme Court decisions (many of which we cited in our amicus brief) such as Griswold v. Connecticut, Maynard v. Hill, Meyer v. Nebraska, Zablocki v. Redhail, and Loving v. Virginia, many of which “discussed the right to marry at a broader level of generality” than appellants’ argument that the right applied only to opposite-sex couples. (pp. 23-25) Moreover, the court noted that the Supreme Court “has also described the fundamental right to marry as separate from the right to procreate,” thereby undermining appellants’ arguments “that the right to marriage is fundamental because of its procreative potential.” (p. 27) Moreover, the freedoms inherent in marriage, such as the freedoms to “choose one’s spouse, to decide whether to conceive or adopt a child, to publicly proclaim a commitment to remain together through thick and thin … support the dignity of each person, a factor emphasized by the Windsor court.” (p. 31)
Having decided that marriage is a fundamental right for all, the court subjected Amendment 3 to strict scrutiny – in other words, it analyzed whether the law was narrowly tailored to serve a compelling state interest. The court considered three interests that Utah said Amendment 3 served and said none justified the laws:
- The court concluded that even if the state was right that it had a compelling interest in strengthening a link between marriage and procreation, Amendment 3 was not tailored to meet that interest, in part because Amendment 3 did not differentiate between couples that did or did not procreate, and that Utah’s other laws allow elderly couples, those unable to conceive, and those not desiring children to marry. “[O]nly those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage.” (p. 49)
- In response to appellants’ concerns that allowing same-sex marriage would threaten opposite-sex marriage and the institution in general, the court added that “[w]e emphatically agree with the numerous cases decided since Windsorthat it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples” (p. 51) and that “[w]e cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child.” (p. 54)
- In a particularly eloquent passage, the court also dismissed Utah’s arguments that the marriage bans were designed to promote heterosexual marriage to meet the best interests of children in the state. The court began by noting that biological relationships are not the sole determinant of a family relationship and cited to language in Windsor stating that same-sex marriage restrictions “humiliate” thousands of children being raised by same-sex couples. (p. 35) Moreover, the court stated that same-sex marriage bans such as Utah’s actually cause harm by “deny[ing] to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.” (p. 35) Later, the court states that “[w]e cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other.” (p. 56)
The court also addressed the appellants’ concerns about federalism, holding that the court could not “defer to the 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 addition, the court noted that Windsor recognized that states must respect constitutional rights of individuals in making laws about marriage. (p. 62)
Although the Tenth Circuit upheld Judge Shelby’s decision, the laws will stay in effect pending the disposition of an appeal to the Supreme Court.
Though the court did not cite our amicus brief explicitly, certain parts of the court’s decision tracked our reasoning, most notably in holding that marriage is a fundamental right, and that fundamental rights are not subject to a vote. Alliance for a Better Utah is listed as an amicus at the end of the decision, on p. 87.
By Courtney Bowman for Alliance for a Better Utah. Posted with permission.