Federal District Court Strikes Down Utah Laws Against Same-Sex Marriage

In a decision issued earlier today in the case of Kitchen v. Herbert, Judge Roger J. Shelby, a federal judge for the Central District of Utah, struck down that state's statutes and constitutional provisions against same-sex marriage. Utah thereby becomes the 18th state to recognize same-sex marriage. The judge's opinion is available here.


Judge Shelby's ruling is extremely broad. He bases his decision on both the Due Process Clause and the Equal Protection Clause of the United States Constitution. Under the Due Process Clause, he finds that the right to marry another person of the same gender is a fundamental right, and under the Equal Protection Clause he rules that the State of Utah unlawfully discriminated against same-sex couples by denying them the right to marry.

Among the many findings and rulings of the District Court are the following:

1. "Tradition and history are insufficient reasons to deny fundamental rights to an individual." (p. 29)

In support of this proposition Judge Shelby quotes the following passage from Justice Kennedy's majority opinion in Lawrence v. Texas:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

2. Denying gay and lesbian couples the right to marry is gender discrimination. (p. 35)

I have come around to this view myself. In my opinion, the argument by opponents of same-sex marriage that "a child deserves both a mother and a father" betrays the assumption that only a man can be a father and only a woman can be a mother. It also represents the assumption that a man can have a satisfying and fulfilling sexual relationship only with a woman, and that a woman can have such a relationship only with a man. The long history of gender discrimination in our society reveals that it is based upon just such assumptions about the proper roles of men and women as voters, jury members, lawyers, administrators of estates, bartenders, and students at military colleges. Each of these rigid understandings of gender roles has been shown to be false. It is now time for the principle of gender equality to be applied to intimate relationships, marriage, parenting, and the family, and this equality is made manifest by allowing same gender couples the same rights and responsibilities as opposite-sex couples.

Judge Shelby finds it unnecessary to apply "heightened scrutiny" to the law in question because he concludes that the law fails the rational basis test.

3. Judge Shelby identifies four reasons offered by the state to justify the Utah laws prohibiting same-gender marriage: (1) To promote responsible procreation within marriage; (2) promote the ideal that children will be raised by a mother and a father; (3) proceeding with caution in light of the unknown effects of same-sex marriage; and (4) preserving the traditional definition of marriage. (pp. 43-49)

The first two interests, promoting procreation and optimizing child rearing, are no doubt legitimate goals. However, the state offered no evidence that barring same-sex couples from marrying would achieve either goal. Specifically, the court found:

The State's position appears to be based on an assumption that the availability of same-sex marriage will somehow cause opposite-sex couples to forego marriage. But the State has not presented any evidence that heterosexual individuals will be any less inclined to enter into an opposite-sex marriage simply because their gay and lesbian fellow citizens are able to enter into a same-sex union. Similarly, the State has not shown any effect of the availability of same-sex marriage on teh number of children raised by either opposite-sex or same-sex partners.

In contrast to the State's speculative concerns, the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed. To apply the Supreme Court's reasoning in Windsor, Amendment 3 "tells those couples, and all the world, that their otherwise valid relationships are unworthy of [state] recognition. This places same-sex couples in an unstable position of being in a second-tier [relationship]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects." ... And while Amendment 3 does not offer any additional protection to children being raised by opposite-sex couples, it demeans the children of same-sex couples who are told that their families are less worthy of protection than other families.(pp. 49-50)

The third interest of the state -- proceeding with caution -- lacks a rational basis because the state offered no evidence concerning the effect of allowing same-sex couples to marry. The state's fear of future consequences was just that -- fear. The District Court quoted from the Supreme Court's opinion in City of Cleburne v. Cleburne Living Center, Inc. stating that "mere negative attitudes, or fear ... are not permissible bases" for discriminating against people. (p. 47) (Cleburne involved the denial of a zoning variance allowing the operation of a group home for persons with developmental delays.)

The fourth interest of the state -- defending tradition -- is of course not a legitimate governmental interest. Judge Shelby stated:

The traditional view of marriage has in the past included certain views about race and gender roles that were insufficient to uphold laws based on these views. (p. 48)

Judge Shelby concluded his opinion by quoting from the brief for the State of Virginia in the Loving case, in which the Supreme Court struck down Virginia's law against interracial marriage. In that case the State argued:

(1) The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states; (2) Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, 'Shall we then add to the number of children who become the victims of their intermarried parents?'; (3) Intermarriage constitutes a threat to society; and (4) Under the Constitution the regulation and control of mariatal and family relationships are reserved to the States. (p. 51)

Judge Shelby stated:

These contentions are almost identical to the assertions made by the State of Utah in support of Utah's laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. (p. 51)

This decision will no doubt be appealed to the Federal Court of Appeals for the Tenth Circuit, and thence to the Supreme Court of the United States.