Federal Appeals Court Strikes Down Utah Gay Marriage Law

The battle over the legalization of gay marriage saw another key victory for same-sex couples this week when the 10th Circuit Court of Appeals became the first Federal Appellate Court to find a state ban on gay marriage unconstitutional. Several state and lower federal court decisions have overwhelmingly rejected gay marriage bans, however, the 10th Circuit’s decision represents the highest legal authority on the issue to date.

Federal Appeals Court Rejects Utah’s Same-Sex Marriage Ban

The 10th Circuit Court of Appeals agreed to hear Kitchen v Herbert to specifically address the question of whether or not it is constitutional for a state to deny gay citizens the ability to marry by passing laws banning same-sex unions. The case comes via appeal from a decision to reject Utah’s gay marriage ban earlier this year, and stands out as the first appellate court ruling on the issue. In a detailed 60-page opinion, found here, the Court held that marriage is a fundamental right protected by the Fourteenth Amendment, and any state law banning that right must be reviewed under a strict scrutiny analysis.

As I have written about before, strict scrutiny is the most stringent form of federal legal review, requiring a state to demonstrate that any law with a discriminatory effect must be narrowly tailored to advance a compelling state interest. While not every Court has embraced marriage as a fundamental right and adopted the strict scrutiny review, the approach seems to be increasingly common in decisions that reject gay marriage bans. In Kitchen, the 10th Circuit set a new precedent for the type of review gay marriage bans face, and it will be interesting to see if other federal appellate courts, which are hearing similar challenges, are willing to embrace the legal argument.

Utah’s Stated Interests Not Sufficient for Gay Marriage Ban

In defending its gay marriage ban, Utah advanced four primary reasons why the State’s law should survive constitutional review:

  1. Utah wants to foster a “child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”
  2. The State wants “children being raised by their biological mothers and fathers – or at least by a married mother and father – in a stable home”
  3. The State wants to “ensure adequate reproduction”
  4. Utah wants to “accommodate religious freedom and reduce the potential for civic strife.”

The fourth interest was dismissed off-hand with the 10th Circuit pointing out that, “the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights.” As to the remaining three, the Court noted that even if it assumed they were compelling interests to Utah and its citizens, the law banning gay marriage was not narrowly tailored to advance them. The majority opinion pointed out that “each of the justifications rests fundamentally on a slight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.”

What the 10th Circuit is arguing is simple: a broad ban on gay-marriage is not the path to ensuring that Utah’s justifications for the law are satisfied. Same-sex and opposite-sex couples could create environments that run counter to the interests stated in Utah’s defense of its gay marriage ban, so a law that only includes same-sex couples is not sufficiently tailored to the interests in question. Identifying same-sex marriage as the only threat to the state interests is discriminatory, and according to the 10th Circuit, an unconstitutional deprivation of the fundamental right of marriage.

Dissent Provides Unique Legal Argument on Gay Marriage Bans

Also unique to the 10th Circuit’s opinion in Kitchen was a strongly written dissent from Judge Paul Kelly – the first time a member of the judiciary has determined that a ban on gay marriage could be constitutional. Judge Kelly’s minority opinion, a 40-page response to the majority, argued that marriage is not a fundamental right and therefore is not entitled to a strict scrutiny review. Instead, Judge Kelly would have applied a rational basis scrutiny review – the lowest standard that only requires states to demonstrate that a law is rationally related to a legitimate government justification. Going further, Judge Kelly found that the first three interests advanced by Utah were sufficient justification under the lower standard of review – making the ban on same-sex marriage constitutional.

Judge Kelly is not the first judge to suggest gay marriage laws require only a rational basis review (see this post about a decision in Oregon), but he is the first to determine that a gay marriage ban can survive constitutional review under that standard. Although his legal argument has no bearing on the outcome of Kitchen, Judge Kelly’s dissent pumps the breaks on the notion that gay marriage is universally supported by the judiciary. As more federal appellate courts hand down gay marriage decisions, the future of bans on same-sex marriage laws remains to be seen, and with Utah officials promising to appeal Kitchen to the Supreme Court, the matter is far from over.

 

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