With the 10th Circuit invalidating Utah’s Amendment 3 forbidding gay marriage in Herbert v. Kitchen, Utah has two options: let it go or keep fighting.
Ultimately, while it may be more politically impactful to fight the 10th Circuit’s ruling, the result will be the same: gay marriage will be legal and lawful throughout the United States. This is a battle that was lost in 2003, the moment the Supreme Court invalidated Texas’ anti-sodomy laws with Lawrence v. Texas.
Why is this a lost cause?
Part of the reason is that gay marriage opponents had created an unassailable, Maginot Line-like series of fortifications against gay marriage by way of state constitutional amendments against gay marriage. Like the French, they soon found themselves outmaneuvered by a much more sophisticated opponent who simply bypassed those amendments on their way to claiming whatever ground they wanted. This was done by working to change people’s perceptions and fight conservative judicial nominations instead of fighting battles in statehouses. As a result, public opinion has shifted and gay marriage amendments across the nation are about to be invalidated.
Some may think that the Kitchen decision won’t mirror how the court decided on Lawrence, but the court looks about the same now as it did then. While the faces of the court have changed since 2003, the ideological bent of it has not. As a result, you still have the court’s liberal wing (Sotomayor, Kagan, Breyer, Ginsburg) on one side with the court’s conservative wing (Scalia, Alito, Roberts, Thomas) on the other. Justice Kennedy stands in the middle, but based on his opinion in Lawrence, he will rule in favor of striking down the law in Kitchen. Likewise, to add some level of consensus, Justice Roberts could very well side with the majority in a purely procedural fashion, much as he has in other opinions in the past.
Does this mean that Utah should stop fighting and accept the Kitchen ruling as it stands now?
It depends on the depth of our conviction. Utah may be able to get some kind of stay on the ruling pending an en banc hearing or appeal to the Supreme Court. The best case scenario for Amendment 3 defenders is that it buys some time. Worst case scenario, it doesn’t happen, more taxpayers’ dollars are spent, and Kitchen becomes the law of the entire United States, not just the 10th Circuit. There is no realistic scenario where the courts don’t invalidate Utah’s Amendment 3. Ultimately it just buys some time – if Kitchen stays the law in just the 10th Circuit, the law will be changed with another case. The question is if Governor Herbert wants to make the history books like Brown v. Board of Education, Marbury v. Madison, and Miranda v. Arizona.
What are the consequences of Kitchen, one way or the other?
The most obvious is the legalization of monogamous marriage between any two people. This is the crux of the case and it will be the immediate impact. Beyond that, I see one additional medium to long-term result of the Kitchen decision if it goes to the Supreme Court.
While most slippery slope arguments fall on deaf ears, the precedent has been set that the government should stay out of citizens’ bedrooms. As a result, I see the legalization (after another long court battle) of polygamy and other group marriage arrangements. While there has been some hyperbole to say that anybody will be allowed to marry anybody or anything, at best it’s a knee-jerk reaction. The biggest difference between polygamy and other possible marriage arrangements is that polygamy is well established in other cultures and has its own history in the United States.
I don’t believe that polygamy will become nearly as widespread as gay marriage already is, but the precedent was set in Lawrence and has been codified by ongoing decisions in Kitchen and other cases that the government should stay out of the bedrooms of consenting adults. It is impossible to deny these other groups their right to reproductive privacy when extending it to all monogamous consenting adults.