By John Noland
On December 20, 2013, advocates for
marriage equality won a victory in the last place they would have
expected. Robert J. Shelby, a District
Court Judge in Utah, one of the most conservative states in America, struck
down a state constitutional amendment banning gay marriage. This was not to be a decision to be taken
lightly, especially in a state traditionally so opposed to the extension of
marriage to same-sex couples. Indeed,
the Supreme Court has stayed the ruling until the Court of Appeals for the Tenth
Circuit, based in Denver, can hear and rule on this case, Kitchen v. Herbert. Then,
just four days later, Attorney General Eric Holder announced that the federal
government would recognize the marriages that had been performed after Shelby’s
decision, in spite of the continued appeal process. This twisty, convoluted judicial process by
which the Utah ruling’s status is debated is in many ways emblematic of
marriage equality’s rise in America, with its blend of judicial action, federal
and local lawmaking and unmaking, and passionate activism on both sides of the
issue. Similarly, the ruling in Bishop v. Oklahoma recently called into
question the legality of same-sex marriage in that state. With the upcoming appeal in mind, this could
prove to be a massive decision for the Supreme Court to have to make. The only certainty in such instances is of contention.
In 2005, Utah voters approved
“Amendment Three,” which declared that “marriage consists only of the legal
union between a man and a woman” (Kitchen, 8).
This was largely in line with the state’s general pattern of disproval
of this issue. In a 2010 poll, only 27
percent of residents believed that same-sex marriage should be legalized (Utah).
This analysis also found that 70 percent of respondents identified as
Mormons, 50 percent as Republican, and 52 percent as somewhat to very
conservative. Much of the surprise and outrage
that this decision engendered was rooted in the solid conservatism of this
state. For some, this reflects judicial
activism, and the court’s tendency to go beyond its purview to rule on
political, and not merely legal questions.
That the court would go against Utah’s demonstrated inclinations on this
issue shocked many. Indeed, Michael
Ferguson, newly wed under Shelby’s ruling, admitted that he and his husband
were “still cognizant of the fact that this still is one of the most
conservative states in the union,” and that an appeal was unsurprising (Healy
and Liptak). Proponents of the verdict,
on the other hand, would argue that it is the court’s duty to decide issues
that the political system has no rule in weighing, like civil rights. This is largely the view that Judge Shelby
took in his extensive opinion.
The guiding principle Shelby used
to justify the nullification of the amendment was primarily based not in
federalism, but in constitutionality.
When the Supreme Court ruled on this issue in United States v. Windsor in 2013, they “explicitly avoided ruling
on whether a state ban on same-sex marriage was valid” (Denniston, 12/21). The question of federalism in this debate, or
in whether states have the right to declare such marriages unconstitutional,
was of secondary concern for Shelby.
Though he “agrees with Utah that
regulation of marriage has traditionally been the province of the states,” he
nonetheless provides the caveat that state regulations “must comply with the
Constitution of the United States,” and thus contends that the issue is “not
who should define marriage, but…of whether Utah’s current definition of
marriage is permissible under the Constitution” (Kitchen 1). This is arguably a philosophically weightier
issue, as questions of jurisdiction, like those the federalism debate
considers, imply a measure of legality.
They are questions of who should be in charge, rather than if there
should be anyone in charge at all. Thus,
by making this a discussion of constitution, Shelby cast doubt over the
argument that bans on marriage equality could be made at all. After weighing these distinctions, Shelby “holds
that Utah’s prohibition on same-sex marriage conflicts with the United States
Constitution’s guarantees of equal protection and due process under the law,”
and thus such an amendment serves to “deny its gay and lesbian citizens their fundamental
right to marry and, in so doing, demean the dignity of these same-sex couples
for no rational reason” (Kitchen 2). In
order to back up this assertion, Shelby’s opinion discusses the nature of state
jurisdiction over interpersonal relations, and the history of the marriage
equality movement. In his analysis of
the Windsor decision, he writes that the
Supreme Court “grounded its holding in the Due Process Clause of the Fifth
Amendment, which protects an individual’s right to liberty,” a right that the
Defense of Marriage Act (DOMA) denied by making same-sex marriages less
respected or valued than others, and in thus demeaning the couples (Kitchen
12). However, Shelby also identified
precedent useful in regards to the plaintiff’s claim that the Utah law violated
the Fourteenth Amendment. “[T]he Supreme
Court has considered analogous questions that involve the tension between [state’s
rights to regulate marriages and individual’s rights to equal protection and
due process] in other cases,” he writes, offering Loving v. Virginia’s ruling on miscegenation as an example, before
concluding that the Court “has held that the Fourteenth Amendment requires that
individual rights take precedence over states’ rights where these two interests
are in conflict” (Kitchen 13). Herein
lies the centerpiece to Shelby’s nullification of Utah’s amendment. Though the
state has a right to regulate marriages, this is secondary to the individual’s
primary right to due process and equality under the laws. Constitutionality, or the lack thereof in
this case, precedes federalism, in the question of personal rights.
As is standard for such
hotly-contested issues, this decision was promptly appealed. As the geographical overseer for this region,
Justice Sotomayor moved the request for a stay to the full Supreme Court, which
affirmed it unanimously, and thus pushed the case to the relevant appeals
court, the Tenth Circuit. Yale law
professor William N. Eskeridge, Jr. does not believe that the stay should be
taken as a sign of the court’s action or inaction to come. “We know nothing more than we did the
day after” the Supreme Court ruled in Windsor,
he declared (Healy and Liptak). In the
meantime before the appellate is set to rule, the question of the status of
those who were married in the period before the Supreme Court’s decision
arose. From December 20 to January 6,
“some 1,360 marriage licenses were issued to same-sex couples across the state”
(Denniston 1/10). However, on January
10, U.S. Attorney General Eric Holder announced that, “for purposes of federal
law, these marriages will be recognized as lawful and considered eligible for
all relevant federal benefits on the same terms as other same-sex marriages” (Denniston
1/10). This reflects the power that the
federal government has in providing benefits to same-sex couples, regardless of
state opinion. It is important to note
that these individuals must be recognized by state authorities as married,
though this marks a continuance of the trend seen in the federal government now
offering joint tax returns to same-sex couples married outside of their home
state. Indeed, for advocates of marriage
equality, the federal government could be a powerful ally in extending rights
to all couples.
As the
Tenth Circuit prepared to hear the appeal of Kitchen v. Herbert, a similar case arose within the appellate
court’s jurisdiction. In Bishop v. Oklahoma, Judge Terence C.
Kern ruled that the state’s limiting of marriage to heterosexual couples is “an
arbitrary, irrational exclusion of just one class of Oklahoma citizens from a
governmental benefit,” words that mirror Shelby’s opinion in Utah (Eckholm). This decision is also quite significant in
that it comes from another strongly conservative state, marking a path by which
proponents of marriage equality may seek reform in traditionally red
states. Kern denied same-sex couples in
Oklahoma the same opportunity that those in Utah had, as he “stayed his
decision in anticipation of an appeal by Oklahoma to the same appeals court
where the Utah case is being heard, the United States Court of Appeals for the
10th Circuit” (Eckholm). However, as the
Utah case has been expedited, the two may not be argued in conjunction, though
the Circuit Court might also seek to use this as an opportunity to address both
at once. Indeed, in any of the numerous
permutations by which these cases could be litigated or decided, it is highly
likely that the Supreme Court will need to address this issue again. This is especially true in the case of a
circuit split, in which two Courts of Appeals might pass contradictory rulings,
leaving the Supreme Court the task of rectifying the two.
Same-sex
marriage remains one of the most divisive issues in America. As Judge Shelby writes, “[s]ince 2003, every other state has either legalized
same-sex marriage or, like Utah, passed a constitutional
amendment or other legislation to prohibit same-sex unions” (Kitchen, 9). In situations like these, middle ground is
hard to come by. There are currently
seventeen states that recognize marriage equality, with Utah having been the
eighteenth for a short time. As some
point, the Supreme Court will likely have to offer a more definitive ruling on the
constitutionality of these state bans on same-sex marriage. Until that day, there will likely be many
more cases like Kitchen v. Herbert
and Bishop v. Oklahoma, for as long
as people have grievances will there be courts to air them in, and that these
two cases come from conservative states only serves to illustrate the rapid
growth and uncertainty in the way this issue might be concluded.
References
Denniston, Lyle.
"U.S. Will Recognize Utah Same-sex Marriages (UPDATED)." SCOTUSblog. SCOTUSblog.com, 10 Jan.
2014. Web. 11 Feb. 2014.
Denniston, Lyle.
"Utah’s Same-sex Marriage Ban Falls (FURTHER UPDATED)." SCOTUSblog. SCOTUSblog.com, 21 Dec.
2013. Web. 11 Feb. 2014.
Eckholm, Erik.
"Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules." The New York Times. The New York Times
Company, 14 Jan. 2014. Web. 11 Feb. 2014.
Healy, Jack, and
Adam Liptak. "Justices’ Halt to Gay Marriage Leaves Utah Couples in
Limbo." The New York Times. The
New York Times Company, 6 Jan. 2014. Web. 11 Feb. 2014.
Kitchen v.
Herbert. United States District Court for the District of Utah, Central
Division. 20 Dec. 2013. N.p., n.d. Web. 11 Feb. 2014.
Utah Opposes Same-sex Marriage, but Not All
Recognition. Public Policy Polling.
Public Policy Polling, 21 July 2011. Web. 11 Feb. 2014.
