How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage

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How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage

How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage Equality
Friday’s decision by a Federal Judge overturning Utah’s constitutional ban on same-*** Marriage (Amendment 3) represents the first major legal victory for Marriage equality since the U.S. Supreme Court overturned the Federal Defense of Marriage Act (DOMA). In that case, United States v. Windsor, the Court only addressed the question of Federal recognition of marriage, and though procedural rulings in cases in other state have cited it, the Utah decision is the first time Windsor was cited to completely overturn a state law banning same-*** marriage. In an extremely readable opinion, Judge Robert Shelby — an Obama appointee whose **mination was supported by both Sens. Orrin Hatch (R-UT) and Mike Lee (R-UT) — explained **t only why Windsor applied, but why the state’s Arguments Against same-*** Marriage fell flat.

As is playing out in other suits across the country, both the plaintiffs — three same-*** couples — and the state cited Windsor in their arguments. According to Utah state officials, Windsor affirmed the right of states to choose how to define marriage, but the plaintiffs’ legal team pointed out that the case wasn’t actually decided on such federalism grounds. Instead, Justice Kennedy wrote that DOMA violated the Fifth Amendment, denying due process and equal protection to same-*** couples. In his opinion, Shelby **ted that the 14th Amendment provides the same due process and equal protection at the state level, and just as they did for interracial couples in Loving v. Virginia, “individual rights take precedence over states’ rights where these two interests are in conflict.” Ironically, he went on to cite Justice Scalia’s dissent in the DOMA case to reinforce its impact in this regard.

In U.S. case law, equal protection has sometimes been applied through what’s called “heightened scrutiny” for some classes of people who might be targeted for discrimination, such as women or people of color. Thus, if a law is found to be unfairly affecting a group of people on the basis of their *** or race, as examples, the government is held to a higher standard to defend that law. Aside from a few lower court rulings, however, there is **t Federal precedent to apply heightened scrutiny to ***ual orientation, and as Shelby **ted in his opinion, he is bound by Tenth Circuit jurisprudence that decidedly did **t apply such scrutiny. Thus, he could only consider Utah’s Marriage ban according to a “rational basis review,” which basically means that if the government could provide any convincing justification for Amendment 3 — even if it’s **t the purpose for which it was originally passed — then the law must be upheld. But, Shelby **ted, heightened scrutiny was **t necessary to impact the outcome of this case, because “the law discriminates on the basis of ***ual identity without a rational reason to do so.” With Windsor in hand, he proceeded to unpack and dismantle each of the Arguments the state made.

Claim: Same-*** Couples Are **t Qualified To Marry Because They Can**t Procreate

Conservatives have long arbitrarily asserted that a limitation to man-woman unions is inherent in the very definition of “marriage,” suggesting that “same-*** marriage” is thus an oxymoron. Utah state officials offered their own variation of this claim, arguing that same-*** couples were **t “qualified” to marry because they can **t naturally reproduce with each other. Shelby observed that there are plenty of opposite-*** couples who can**t have children or choose **t to, while at the same time there are over 3,000 same-*** couples already raising children in Utah. The state’s double standard played out humorously during oral arguments earlier this month, with Philip S. Lott representing Utah (transcript is abridged here):

THE COURT: Is it the state’s position that it would be constitutional, if the state chose to do so, to enact a regulation or law requiring that individuals who wish to marry submit to fertilization testing to prove that they’re capable of procreation? Is that constitutional? Because Marriage — you’re relying on procreation as an essential characteristic of that union or that right? [...]

LOTT: I don’t believe it would be constitutional, also because there is Supreme Court precedent saying that the right to **t procreate is a fundamental right. So the state would **t do that and would **t be able to do that. [...]

THE COURT: Before we leave that last hypothetical, let me pose it a different way and see if the answer is any different. Could the state of Utah constitutionally restrict Marriage — deny Marriage licenses say to post-me**pausal women?

LOTT: I think the answer again is that the state’s interest in fostering procreation within certain parameters is **t intended to exclude other relationships that potentially are going to involve raising a child. If you have a post-me**pausal woman, she may **t herself be able to have a child, but that doesn’t mean that she’s **t going to have a grandchild that she may be in a position to need to raise or a niece or a nephew, and so the state’s interest is still present.

THE COURT: So is it something different than an individual’s actual ability to procreate? That’s **t the fundamental characteristic? It’s the likelihood that the person may find themselves in the position of raising a child?

LOTT: Yes.

THE COURT: Okay. How are same-*** couples different in that respect?

LOTT: Well, a gay or lesbian person obviously can reproduce, but it’s **t going to occur within a same-*** marriage. [...] The simple answer to that is that procreation is the difference. A same-*** couple is **t going to produce children.

THE COURT: Okay, so post-me**pausal women in the state of Utah do **t have a constitutional right to marry, as an example, or people who by virtue of surgical operations or genetics or whatever reason — if they can’t procreate, there’s **t a fundamental right to marry. That’s the state’s view about the defining difference between the fundamental right that the plaintiffs are seeking here and those that are recognized by the Supreme Court?

LOTT: **.

In his decision, Shelby pointed out that the Supreme Court has recognized “important attributes of Marriage that exist besides procreation,” which is why, for example, prison inmates have been allowed to marry even if they are unable to consummate their marriages. “These attributes of marriage,” he wrote, “are as applicable to same-*** couples as they are to opposite-*** couples.”

Claim: Same-*** Marriage Is A “New Right”

Riffing on the claim that “marriage” only means — and has only ever meant — a man and a woman, Utah also argued that same-*** Marriage is a “new right,” **t the same “fundamental right” to marry that courts have previously affirmed. Comparing this case to Loving v. Virginia, which addressed the question of interracial marriage, Shelby **ted that the right to marry includes the right to choose who to marry. Same-*** couples, he concluded, are seeking “the same right that is currently enjoyed by hetero***ual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.” Given that straight people are as unlikely to exercise the right to marry someone of the same-*** as gay people are to marry someone of the opposite-***, both are “therefore simply manifestations of one right — the right to marry — applied to people with different ***ual identities.”

Shelby couched this conclusion in his observation that much has been learned about homo***uality and the experience of people with same-*** orientations, which must be properly contextualized:

While it was assumed until recently that a person could only share an intimate emotional bond and develop a family with a person of the opposite ***, the realization that this assumption is false does **t change the underlying right. It merely changes the result when the court applies that right to the facts before it. Applying that right to these Plaintiffs, the court finds that the Constitution protects their right to marry a person of the same *** to the same degree that the Constitution protects the right of hetero***ual individuals to marry a person of the opposite ***.

In other words, there is ** such thing as “gay marriage” or “straight marriage”; there is only marriage.

Claim: Tradition And History Have Always Recognized Marriage As Between One Man And One Woman

Shelby was quick to brush off the suggestion that historic understandings of Marriage had any relevance in this decision. Referring to the Supreme Court’s decision in Lawrence v. Texas, which overturned laws criminalizing same-*** ***ual relations (“sodomy laws”), he **ted that the equal protection clauses in the Constitution did **t specify which identities were protected and which were **t:

Here, it is **t the Constitution that has changed, but the k**wledge of what it means to be gay or lesbian. The court can**t ig**re the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same *** but **t with a person of the opposite ***. The court, and the State, must adapt to this changed understanding.

This assertion carries some of the same weight that a “heightened scrutiny” review would have: people with same-*** orientations exist, have a distinct place in society, and must be provided the same protections under the law in a context that fits those experiences.

Claim: Prohibiting Same-*** Marriage Does **t Discriminate On The Basis Of ***

In addition to arguing that the Marriage amendment discriminates on the basis of ***ual orientation, the plaintiffs also made the case that it discriminates on the basis of ***, because it prohibits a man from marrying a**ther man but **t from marrying a woman. The state replied that it does **t discriminate as such because both ***es are equally prohibited from marrying the same-***. Judge Shelby was **t convinced by this claim, because the exact same argument failed when used in Loving to defend a ban on interracial marriage:

In Loving, Virginia argued that its anti-miscegenation laws did **t discriminate based on race because the prohibition Against mixed-race Marriage applied equally to both white and black citizens. The Court found that “the fact of equal application does **t immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Applying the same logic, the court finds that the fact of equal application to both men and women does **t immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to ***.

Because the amendment fails even on rational basis review, Shelby did **t actually apply this consideration; he was simply making the point that he could have.

Claim: The Amendment Was **t Passed Out Of Animus Against Same-*** Couples

Plaintiffs also argued that citizens voted for Amendment 3 “out of a dislike of gay and lesbian individuals,” and Shelby stopped short of agreeing with this, because “it is impossible to determine what was in the mind of each individual voter.” Nevertheless, he did conclude that the only purpose of Amendment 3 could have been to “impose inequality” upon same-*** couples:

First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of Marriage to same-*** couples, which is a**ther way of saying that the law imposes inequality. Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that ** domestic union could be given the same or substantially equivalent legal effect as marriage. This wording suggests that the imposition of inequality was **t merely the law’s effect, but its goal.

Second, Amendment 3 has an unusual character when viewed within the historical context in which it was passed. Even though Utah already had statutory provisions that restricted Marriage to opposite-*** couples, the State nevertheless passed a constitutional amendment t ocodify this prohibition. This action is only logical when viewed Against the developments in Massachusetts, whose Supreme Court held in 2003 that the Massachusetts Constitution required the recognition of same-*** marriages. The Utah legislature believed that a constitutional amendment was necessary to maintain Utah’s ban on same-*** Marriage because of the possibility that a Utah court would adopt reasoning similar to the Massachusetts Supreme Court and hold that the Utah Constitution already protected an individual’s right to marry a same-*** partner. Amendment 3 thereby preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.

The state may have argued there were a number of reasons to pass the amendment, and some voters may have even believed in those reasons and voted with “good intentions,” but the law was clearly passed for the sole reason of maintaining discrimination Against the gay community.

Claim: Banning Same-*** Marriage Promotes “Responsible Procreation”

The state also argued the old “responsible procreation” canard, the claim that Marriage is really about incentivizing opposite-*** couples to marry if they get pregnant — especially if they do so unintentionally. Shelby found this argument to be meaningless because there was ** evidence to suggest it was true. Moreover, he countered, this line of thinking actually encourages ***ual activity outside of marriage:

The State has presented ** evidence that the number of opposite-*** couples choosing to marry each other is likely to be affected in any way by the ability of same-*** couples to marry. Indeed, it defies reason to conclude that allowing same-*** couples to marry will diminish the example that married opposite-*** couples set for their unmarried counterparts. Both opposite-*** and same-*** couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-*** Marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does **t currently permit same-*** couples to engage in ***ual activity within a marriage, the State reinforces a **rm that ***ual activity may take place outside the Marriage relationship.

Responsible procreation may be a valid goal, but banning same-*** Marriage does **t contribute to it.

Claim: Opposite-*** Couples Make Better Parents

In their court briefs, the Utah state officials argued that the debate about same-*** parenting is still on-going, citing flawed studies by Mark Regnerus and Douglas Allen to suggest that same-*** couples might make inferior parents. “The optimal hetero***ual parenting rationale,” they wrote, “is at least debatable,” but the “gold standard” is an intact, biological, married family. Judge Shelby did **t even bother entertaining this so-called “dispute” about parenting, however, because it wasn’t even relevant to the Marriage debate:

There is ** reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-*** couples or same-*** couples. The State has presented ** evidence that Amendment 3 furthers or restricts the ability of gay men and lesbians to adopt children, to have children through surrogacy or artificial insemination, or to take care of children that are biologically their own whom they may have had with an opposite-*** partner. Similarly, the State has presented ** evidence that opposite-*** couples will base their decisions about having children on the ability of same-*** couples to marry. To the extent the State wishes to see more children in opposite-*** families, its goals are tied to laws concerning adoption and surrogacy, **t marriage.

Shelby went on to highlight that the amendment actually runs counter to the state’s goals of protecting children because it limits the support available to the 3,000 children already being raised in Utah by same-*** couples — just like, as Justice Kennedy wrote, DOMA “humiliates” the children of same-*** couples.

Claim: It’s Important To Proceed With Caution On Same-*** Marriage

The state argued it was important to proceed with caution, because “** one k**ws right **w the precise impact same-*** Marriage will have on traditional marriage, children, and society at large.” Shelby was unconvinced, **ting that the state could **t cite “any evidence to justify its fears.” Moreover, if “proceed with caution” were a worthy argument, the government could use it every single time a law was challenged, which “would turn the rational basis analysis into a toothless and perfunctory review.”

In the conclusion of his decision, Shelby was anything but cautious when it came to explaining the harm done by the Amendment:

Rather than protecting or supporting the families of opposite-*** couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-*** couples are **t **w, **r ever will be, worthy of recognition. Amendment 3 does **t thereby elevate the status of opposite-*** marriage; it merely demeans the dignity of same-*** couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of Marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of Marriage in society, **t a sign that, by opening its doors to all individuals, it is in danger of collapse.

The Only Argument Left: The People Voted

The state of Utah has indicated that it will appeal the decision and has filed for an emergency stay, but that stay might **t be considered for several days. In the meantime, same-*** couples are free to continue marrying, as over a hundred already have. Reacting to the decision, Gov. Gary Herbert (R) expressed his disappointment that “an activist Federal Judge is attempting to override the will of the people of Utah.” The National Organization for Marriage’s Brian Brown similarly decried it as a “travesty of justice,” proclaiming that “this trend of vetoing the voters from the bench must be stopped.”

It is true that the people of Utah voted to pass Amendment 3. It is also true that the 14th Amendment of the Constitution was ratified by the states and is **w part of the Federal law that governs this entire country, including state constitutions. If banning same-*** Marriage is indeed the will of the people as these opponents claim, decisions like Judge Shelby’s suggest it may **w only be possible by amending the U.S. Constitution, a tactic that has failed multiple times and has less traction in Congress **w than it ever did before.

(HT: Kathleen Perrin.)

The post How A Federal Judge In Utah Adeptly Dismantled All Of The Arguments Against Marriage Equality appeared first on ThinkProgress.

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