The Constitution Versus the People: Legal Challenges to State Same-Sex Marriage Bans

BY ADAM HOOCK — On December 20, 2013, Judge Robert J. Shelby of the United States District Court for the District of Utah shocked the country when he issued an order in Kitchen v. Herbert declaring Utah’s statutory and state constitutional bans on same-sex marriage as unconstitutional under the Fourteenth Amendment of the Constitution. In November 2004, 65.9% of Utah’s voters passed Amendment 3, which created Article I, Section 29 of Utah’s Constitution. This section defines marriage under state law as “only . . . the legal union between a man and a woman” and provides that “[n]o other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” That constitutional amendment, as well as two statutory provisions of the Utah Code, was the subject of the legal challenge brought by three gay and lesbian couples in Kitchen.

Reasoning that his decision logically flowed from the Supreme Court’s decision in United States v. Windsor, Judge Shelby found Utah’s ban on same-sex marriage “unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.” First, Judge Shelby concluded that marriage is a fundamental right and “that the Constitution protects an individual’s right to marry as an essential part of the right to liberty.” After dismissing the state’s arguments regarding the essential procreative element of marriage, the decision next concluded that the Plaintiffs were merely “seeking access to an existing right [i.e., the right to marry], not the declaration of a new right.” Accordingly, Judge Shelby concluded that the ban “violates the Plaintiffs’ due process rights under the Fourteenth Amendment.”

Furthermore, applying a rational basis review, Judge Shelby found that the ban violated the Equal Protection Clause because the “legitimate government interests” cited by Utah for the ban—promoting responsible procreation, promoting optimal child-rearing, proceeding with caution in expanding the definition of marriage, and preserving the traditional definition of marriage—“are not rationally related to Utah’s prohibition of same-sex marriage.” Instead, the decision concluded that each of those interests lacked a rational connection with the same-sex marriage ban. In the end, the court found that “[r]ather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition.” As a result of the ruling, hundreds of same-sex couples raced to obtain marriage licenses.

While Judge Shelby’s ruling has been stayed by the Supreme Court pending the appeals process in the Tenth Circuit Court of Appeals, the question now becomes what to expect as other courts around the country rule on similar legal challenges to state same-sex marriage bans. Just three days after the ruling in Utah, Judge Timothy S. Black of the United States District Court for the Southern District of Ohio issued a narrow ruling in Obergefell v. Wymyslo that, under the Due Process Clause of the Fourteenth Amendment, “Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates,” despite the state’s statutory and constitutional bans on same-sex marriages. While Judge Black limited the holding to the question of death certificates, he included language from Windsor suggesting that the Supreme Court’s reasoning in that case extends broadly to invalidating state same-sex marriage bans: “[T]he question is presented whether a state can do what the federal government cannot – i.e., discriminate against same-sex couples . . . simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no . . . .” In another ruling on January 14, 2014, in Bishop v. United States, Judge Terence Kern of the Northern District of Oklahoma also determined that Oklahoma’s state constitutional ban on same-sex marriage was a violation of the Equal Protection Clause of the Fourteenth Amendment.

On the other side of the spectrum, Sevcik v. Sandoval’s challenge to Nevada’s ban on same-sex marriage came out the opposite way as Kitchen and Obergefell, with a 2012 district court ruling in favor of the state. However, it remains to be seen how the Ninth Circuit Court of Appeals will analyze the case on appeal in light of Windsor’s holding.

Moving the analysis closer to home, in 2008, Florida voters approved Amendment 2, a state constitutional ban on same-sex marriage, by 61.9% of the vote, a margin similar to that of Utah. Amendment 2 created Article I, Section 27 of the Florida Constitution, substantively identical to the broad prohibition in Utah’s Constitution: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” While there does not currently appear to be a legal challenge to Florida’s same-sex marriage ban on any federal docket, it is only a matter of time until either a federal district court will have to rule on the issue or the Supreme Court issues a nationwide decision through the appeal of Kitchen or another case.

Some commentators, such as David Adler of Boise State University, believe that the decisions in Kitchen and Obergefell foreshadow what will come of state bans on same-sex marriage. Other legal experts are more cautious, pointing out that the Windsor decision could just as easily be used to bolster states’ rights to establish and define their own marriage laws. Yet, if the legal reasoning applied by Judges Shelby and Black prevails, Florida and the thirty-two other states that currently ban same-sex marriage could see sweeping changes by judicial fiat within the next several years. Ultimately, the decision likely rests with Justice Kennedy, author of the Court’s previous decisions in Romer v. Evans, Lawrence v. Texas, and Windsor. Until then, the courts will continue to grapple with the question.

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