DEREK KITCHEN, MOUDI SBEITY, KAREN ARCHER, KATE CALL, LAURIE
WOOD, and KODY PARTRIDGE, Plaintiffs,
v.
GARY R. HERBERT, JOHN SWALLOW, and SHERRIE SWENSEN,
Defendants.
Case No. 2:13-cv-217.
United States District Court, D. Utah, Central Division.
December 20, 2013.
MEMORANDUM DECISION AND ORDER
ROBERT J. SHELBY, District Judge.
The Plaintiffs in this lawsuit are three gay and lesbian
couples who wish to marry, but are currently unable to do so because the Utah
Constitution prohibits same-sex marriage. The Plaintiffs argue that this
prohibition infringes their rights to due process and equal protection under
the Fourteenth Amendment of the United States Constitution. The State of Utah
defends its laws and maintains that a state has the right to define marriage
according to the judgment of its citizens. Both parties have submitted motions
for summary judgment.
The court agrees with Utah that regulation of marriage has
traditionally been the province of the states, and remains so today. But any
regulation adopted by a state, whether related to marriage or any other
interest, must comply with the Constitution of the United States. The issue the
court must address in this case is therefore not who should define marriage,
but the narrow question of whether Utah's current definition of marriage is
permissible under the Constitution.
Few questions are as politically charged in the current
climate. This observation is especially true where, as here, the state
electorate has taken democratic action to participate in a popular referendum
on this issue. It is only under exceptional circumstances that a court
interferes with such action. But the legal issues presented in this lawsuit do
not depend on whether Utah's laws were the result of its legislature or a
referendum, or whether the laws passed by the widest or smallest of margins.
The question presented here depends instead on the Constitution itself, and on
the interpretation of that document contained in binding precedent from the
Supreme Court and the Tenth Circuit Court of Appeals.
Applying the law as it is required to do, the court 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.
The State's current laws 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. Accordingly, the court finds that these laws are
unconstitutional.
BACKGROUND
I. The Plaintiffs
The three couples in this lawsuit either desire to be
married in Utah or are already legally married elsewhere and wish to have their
marriage recognized in Utah. The court summarizes below the relevant facts from
the affidavits that the couples filed in support of their Motion for Summary
Judgment.
A. Derek Kitchen and Moudi Sbeity
Derek Kitchen is a twenty-five-year-old man who was raised
in Utah and obtained a B.A. in political science from the University of Utah.
Moudi Sbeity is also twenty-five years old and was born in Houston, Texas. He
grew up in Lebanon, but left that country in 2006 during the war between
Lebanon and Israel. Moudi came to Logan, Utah, where he received a B.S. in
economics from Utah State University. He is currently enrolled in a Master's
program in economics at the University of Utah.
Derek testifies that he knew he was gay from a young age,
but that he did not come out publicly to his friends and family for several
years while he struggled to define his identity. Moudi also knew he was gay
when he was young and came out to his mother when he was sixteen. Moudi's
mother took him to a psychiatrist because she thought he was confused, but the
psychiatrist told her that there was nothing wrong with Moudi. After that
visit, Moudi's mother found it easier to accept Moudi's identity, and Moudi
began telling his other friends and family members. Moudi testifies that he was
careful about whom he told because he was concerned that he might expose his
mother to ridicule.
Derek and Moudi met each other in 2009 and fell in love
shortly after meeting. After dating for eighteen months, the two moved in
together in Salt Lake City. Derek and Moudi run a business called
"Laziz" that they jointly started. Laziz produces and sells Middle
Eastern spreads such as hummus, muhammara, and toum to Utah businesses like
Harmon's and the Avenues Bistro. Having maintained a committed relationship for
over four years, Derek and Moudi desire to marry each other. They were denied a
marriage license from the Salt Lake County Clerk's office in March 2013.
B. Karen Archer and Kate Call
Karen Archer was born in Maryland in 1946, but spent most of
her life in Boulder, Colorado. She received a B.A. and an M.D. from the
University of Texas, after which she completed her residency in OB/GYN at the
Pennsylvania State University. She worked as a doctor until 2001, when she retired
after developing two serious illnesses. Karen experienced a number of hardships
due to her sexual identity. Karen came out to her parents when she was
twenty-six years old, but her parents believed that her sexual orientation was
an abnormality and never accepted this aspect of Karen's identity. Karen was
one of thirteen women in a medical school class of 350, and she recalls that
her male classmates often referred to the female students as "dykes."
Karen also testifies that she was once present at a gay bar when it was raided
by the police, who assaulted the bar patrons with their batons.
Kate Call is sixty years old and spent her earliest years in
Wisconsin and Mexico, where her parents were mission presidents for the Church
of Jesus Christ of Latter-day Saints. When she was eight years old, Kate moved
to Provo, Utah, where her father worked as a professor at Brigham Young
University. Kate received her B.A. from BYU in 1974. While she was in college,
she dated several men and was even engaged twice. Although she hoped that she
would begin to feel a more intimate connection if she committed herself to
marriage, she broke off both engagements because she never developed any
physical attraction to her fiancés. Kate began to realize that she was a
lesbian, a feeling that continued to develop while she was serving a mission in
Argentina. She wrote a letter sharing these feelings to her mission president,
who, without Kate's consent, faxed Kate's message to church authorities and her
parents. Kate's family was sad and puzzled at first, but ultimately told her
that they loved her unconditionally.
During her professional life, Kate owned a number of
businesses. In 2000, she bought a sheep ranch in San Juan County and moved
there with D., her partner at the time. Kate worked seasonally for the National
Park Service and D. found a job at the Youth Detention facility in Blanding.
But when rumors surfaced that D. was a lesbian, D.'s boss told her that she
needed to move away from Kate's ranch if she wished to keep her job. While Kate
was helping D. move, someone from D.'s work saw Kate's vehicle at D.'s new
trailer. That person reported the sighting to D.'s boss, and D. was fired.
Several weeks later, Kate's supervisor also told her that her services were no
longer needed. Kate never found out why she was let go, but she surmises that
her supervisor may have been pressured by D.'s boss, who was one of her
supervisor's mentors. Kate and D. moved back to the Wasatch Front, and Kate was
eventually forced to sell the ranch. Kate testifies that she and D. split up as
a result of the difficult challenges they had faced, and Kate eventually moved
to Moab.
Karen and Kate met online through a dating website and were
immediately attracted to each other when they first met in person. Karen moved
from Colorado to Utah, and the couple now lives in Wallsburg. The two are both
concerned about how they will support each other in the event that one of them
passes away, a consideration that is especially urgent in light of Karen's
illness. Karen has had difficult experiences with the legal aspects of
protecting a samesex union in the past. Before meeting Kate, Karen had two
partners who passed away while she was with them. While partnered to a woman
named Diana, Karen had to pay an attorney approximately one thousand dollars to
draw up a large number of legal documents to guarantee certain rights:
emergency contacts, visitation rights, power of attorney for medical and
financial decisions, medical directives, living wills, insurance beneficiaries,
and last wills and testaments. Despite these documents, Karen was unable to
receive Diana's military pension when Diana died in 2005.
Karen and Kate have drawn up similar legal papers, but they
are concerned that these papers may be subject to challenges because they are
not legally recognized as a couple in Utah. In an attempt to protect themselves
further, Karen and Kate flew to Iowa to be wed in a city courthouse. Because of
the cost of the plane tickets, the couple was not able to have friends and
family attend, and the pair had their suitcases by their side when they said,
"I do." Kate testifies that the pragmatism of their Iowa wedding was
born out of the necessity of providing whatever security they could for their
relationship. Under current law, Utah does not recognize their marriage
performed in Iowa.
C. Laurie Wood and Kody Partridge
Laurie Wood has lived in Utah since she was three years old.
She grew up in American Fork, received a B.A. from the University of Utah, and
received her Master's degree from BYU. She spent over eleven years teaching in
the public school system in Utah County and is now employed by Utah Valley
University. She teaches undergraduate courses as an Associate Professor of
English in the English and Literature Department, and also works as the
Concurrent Enrollment Coordinator supervising high school instructors who teach
as UVU adjuncts in high schools across Utah County. She has served on the Board
of Directors for the American Civil Liberties Union for fifteen years and
co-founded the non-profit Women's Redrock Music Festival in 2006. Laurie was
not open about her sexual identity while she was a public school teacher
because she believed she would be fired if she said anything. She came out when
she was hired at UVU. While she dated men in high school and college, she never
felt comfortable or authentic in her relationships until she began dating
women.
Kody Partridge is forty-seven years old and moved to Utah
from Montana in 1984 to attend BYU. She received her B.A. in Spanish and
humanities and later obtained a Master's degree in English. She earned a
teaching certificate in 1998 and began teaching at Butler Middle School in Salt
Lake County. She realized that she was a lesbian while she was in college, and
her family eventually came to accept her identity. She did not feel she could
be open about her identity at work because of the worry that her job would be
at risk. While she was teaching at Butler, Kody recalls that the story of Wendy
Weaver was often in the news. Ms. Weaver was a teacher and coach at a Utah
public school who was fired because she was a lesbian. Kody also became aware
that the pension she was building in Utah Retirement Systems as a result of her
teaching career could not be inherited by a life partner. Given these concerns,
Kody applied and was accepted for a position in the English department at
Rowland Hall-St. Mark's, a private school that provides benefits for the
same-sex partners of its faculty members. Kody volunteers with the Utah AIDS
Foundation and has traveled with her students to New Orleans four times after
Hurricane Katrina to help build homes with Habitat for Humanity.
Laurie and Kody met and fell in love in 2010. Besides the
fact that they are both English teachers, the two share an interest in books
and gardening and have the same long-term goals for their committed
relationship. They wish to marry, but were denied a marriage license from the
Salt Lake County Clerk's office in March 2013.
II. History of Amendment 3
The Utah laws that are at issue in this lawsuit include two
statutory prohibitions on samesex unions and an amendment to the Utah
Constitution. The court discusses the history of these laws in the context of
the ongoing national debate surrounding same-sex marriage.
In 1977, the Utah legislature amended Section 30-1-2 of the
Utah Code to state that marriages "between persons of the same sex"
were "prohibited and declared void." In 2004, the Utah legislature
passed Section 30-1-4.1 of the Utah Code, which provides:
(1) (a) It is the policy of this state to recognize as
marriage only the legal union of a man and a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man
and a woman recognized pursuant to this chapter, this state will not recognize,
enforce, or give legal effect to any law creating any legal status, rights,
benefits, or duties that are substantially equivalent to those provided under
Utah law to a man and woman because they are married.
In the 2004 General Session, the Utah legislature also
passed a Joint Resolution on Marriage, which directed the Lieutenant Governor
to submit the following proposed amendment to the Utah Constitution to the
voters of Utah:
(1) Marriage consists only of the legal union between a man
and a woman.
(2) No other domestic union, however denominated, may be
recognized as a marriage or given the same or substantially equivalent legal
effect.
Laws 2004, H.J.R. 25 § 1. The proposed amendment, which
became known as Amendment 3, was placed on the ballot for the general election
on November 2, 2004. Amendment 3 passed with the support of approximately 66%
of the voters. The language in Amendment 3 was then amended to the Utah
Constitution as Article I, § 29, which went into effect on January 1, 2005.[1]
These developments were influenced by a number of events
occurring nationally. In 1993, the Hawaii Supreme Court found that the State of
Hawaii's refusal to grant same-sex couples marriage licenses was
discriminatory. Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993).[2] And in 1999,
the Vermont Supreme Court held that the State of Vermont was required to offer
all the benefits of marriage to same-sex couples. Baker v. Vermont, 744 A.2d
864, 886-87 (Vt. 1999).[3] Two court cases in 2003 immediately preceded Utah's
decision to amend its Constitution. First, the United States Supreme Court
ruled that the Due Process Clause of the Fourteenth Amendment protected the
sexual relations of gay men and lesbians. Lawrence v. Texas, 539 U.S. 558, 578
(2003). Second, the Supreme Court of Massachusetts ruled that the Massachusetts
Constitution protected the right of same-sex couples to marry. Goodridge v.
Dep't of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
Since 2003, every other state has either legalized same-sex
marriage[4] or, like Utah, passed a constitutional amendment or other
legislation to prohibit same-sex unions. During the past two decades, the
federal government has also been involved in the same-sex marriage debate. In
1996, Congress passed the Defense of Marriage Act (DOMA), which allowed states
to refuse to recognize same-sex marriages granted in other states and barred
federal recognition of same-sex unions for the purposes of federal law. Act of
Sept. 21, 1996, Pub. L. 104-199, 110 Stat. 2419. In 2013, the Supreme Court
held that Section 3 of DOMA was unconstitutional.[5] Windsor v. United States,
133 S. Ct. 2675, 2696 (2013).
The Supreme Court also considered an appeal from a case
involving California's Proposition 8. After the California Supreme Court held
that the California Constitution recognized same-sex marriage, In re Marriage
Cases, 183 P.3d 384, 453 (Cal. 2008), California voters passed Proposition 8,
which amended California's Constitution to prohibit same-sex marriage. The
Honorable Vaughn Walker, a federal district judge, determined that Proposition
8 violated the guarantees of equal protection and due process under the United
States Constitution. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D.
Cal. 2010). Applying different reasoning, the Ninth Circuit Court of Appeals
affirmed Judge Walker's holding that Proposition 8 was unconstitutional. Perry
v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012). This issue was appealed to the
Supreme Court, but the Court did not address the merits of the question
presented. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). Instead, the
Court found that the proponents of Proposition 8 did not have standing to
appeal Judge Walker's decision after California officials refused to defend the
law. Id. Consequently, the Supreme Court vacated the Ninth Circuit's opinion
for lack of jurisdiction. Id. A number of lawsuits, including the suit
currently pending before this court, have been filed across the country to
address the question that the Supreme Court left unanswered in the California
case. The court turns to that question now.
ANALYSIS
I. Standard of Review
The court grants summary judgment when "there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). The court "view[s] the
evidence and make[s] all reasonable inferences in the light most favorable to
the nonmoving party." N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526
F.3d 626, 629 (10th Cir. 2008).
II. Effect of the Supreme Court's Decision in United States
v. Windsor
The court begins its analysis by determining the effect of
the Supreme Court's recent decision in United States v. Windsor, 133 S. Ct.
2675 (2013). In Windsor, the Court considered the constitutionality of Section
3 of DOMA, which defined marriage as the "legal union between one man and
one woman as husband and wife" for the purposes of federal law. 1 U.S.C. §
7 (2012). A majority of the Court found that this statute was unconstitutional
because it violated the Fifth Amendment of the United States Constitution.
Windsor, 133 S. Ct. at 2696.
Both parties argue that the reasoning in Windsor requires
judgment in their favor. The State focuses on the portions of the Windsor
opinion that emphasize federalism, as well as the Court's acknowledgment of the
State's "historic and essential authority to define the marital
relation." Id. at 2692; see also id. at 2691 ("[S]ubject to
[constitutional] guarantees, `regulation of domestic relations' is `an area
that has long been regarded as a virtually exclusive province of the
States.'" (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975))). The State
interprets Windsor to stand for the proposition that DOMA was unconstitutional
because the statute departed from the federal government's "history and
tradition of reliance on state law to define marriage." Id. at 2692. Just
as the federal government cannot choose to disregard a state's decision to
recognize same-sex marriage, Utah asserts that the federal government cannot
intrude upon a state's decision not to recognize same-sex marriage. In other
words, Utah believes that it is up to each individual state to decide whether
two persons of the same sex may "occupy the same status and dignity as
that of a man and woman in lawful marriage." Id. at 2689.
The Plaintiffs disagree with this interpretation and point
out that the Windsor Court did not base its decision on the Tenth Amendment.[6]
Instead, the Court grounded its holding in the Due Process Clause of the Fifth
Amendment, which protects an individual's right to liberty. Id. at 2695
("DOMA is unconstitutional as a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution."). The Court found
that DOMA violated the Fifth Amendment because the statute "place[d]
same-sex couples in an unstable position of being in a second-tier
marriage," a differentiation that "demean[ed] the couple, whose moral
and sexual choices the Constitution protects[.]" Id. at 2694. The
Plaintiffs argue that for the same reasons the Fifth Amendment prohibits the
federal government from differentiating between same-sex and opposite-sex
couples, the Fourteenth Amendment prohibits state governments from making this
distinction.
Both parties present compelling arguments, and the
protection of states' rights and individual rights are both weighty concerns.
In Windsor, these interests were allied against the ability of the federal
government to disregard a state law that protected individual rights. Here,
these interests directly oppose each other. The Windsor court did not resolve
this conflict in the context of state-law prohibitions of same-sex marriage. See
id. at 2696 (Roberts, C.J., dissenting) ("The Court does not have before
it . . . the distinct question whether the States . . . may continue to utilize
the traditional definition of marriage."). But the Supreme Court has
considered analogous questions that involve the tension between these two
values in other cases. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967)
(balancing the state's right to regulate marriage against the individual's
right to equal protection and due process under the law). In these cases, the
Court has held that the Fourteenth Amendment requires that individual rights
take precedence over states' rights where these two interests are in conflict.
See id. at 7 (holding that a state's power to regulate marriage is limited by
the Fourteenth Amendment).
The Constitution's protection of the individual rights of
gay and lesbian citizens is equally dispositive whether this protection
requires a court to respect a state law, as in Windsor, or strike down a state
law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the
Honorable Antonin Scalia recognized that this result was the logical outcome of
the Court's ruling in Windsor:
In my opinion, however, the view that this Court will take
of state prohibition of same-sex marriage is indicated beyond mistaking by
today's opinion. As I have said, the real rationale of today's opinion . . . is
that DOMA is motivated by "bare. . . desire to harm" couples in
same-sex marriages. How easy it is, indeed how inevitable, to reach the same
conclusion with regard to state laws denying samesex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks
omitted). The court agrees with Justice Scalia's interpretation of Windsor and
finds that the important federalism concerns at issue here are nevertheless
insufficient to save a state-law prohibition that denies the Plaintiffs their
rights to due process and equal protection under the law.
III. Baker v. Nelson Is No Longer Controlling Precedent
In 1971, two men from Minnesota brought a lawsuit in state
court arguing that Minnesota was constitutionally required to allow them to
marry. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Minnesota Supreme
Court found that Minnesota's restriction of marriage to opposite-sex couples
did not violate either the Equal Protection Clause or the Due Process Clause of
the Fourteenth Amendment. Id. at 186-87. On appeal, the United States Supreme
Court summarily dismissed the case "for want of a substantial federal
question." Baker v. Nelson, 409 U.S. 810, 810 (1972).
Utah argues that the Court's summary dismissal in Baker is
binding on this court and that the present lawsuit should therefore be
dismissed for lack of a substantial federal question. But the Supreme Court has
stated that a summary dismissal is not binding "when doctrinal
developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344
(1975).
Here, several doctrinal developments in the Court's analysis
of both the Equal Protection Clause and the Due Process Clause as they apply to
gay men and lesbians demonstrate that the Court's summary dismissal in Baker
has little if any precedential effect today. Not only was Baker decided before
the Supreme Court held that sex is a quasi-suspect classification, see Craig v.
Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688
(1973) (plurality op.), but also before the Court recognized that the
Constitution protects individuals from discrimination on the basis of sexual
orientation. See Romer v. Evans, 517 U.S. 620, 635-36 (1996). Moreover, Baker
was decided before the Supreme Court held in Lawrence v. Texas that it was
unconstitutional for a state to "demean [the] existence [of gay men and
lesbians] or control their destiny by making their private sexual conduct a
crime." 539 U.S. 558, 578 (2003). As discussed below, the Supreme Court's
decision in Lawrence removes a justification that states could formerly cite as
a reason to prohibit same-sex marriage.
The State points out that, despite the doctrinal
developments in these cases and others, a number of courts have found that
Baker survives as controlling precedent and therefore precludes consideration
of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep't of Health
& Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker
"limit[s] the arguments to ones that do not presume to rest on a
constitutional right to same-sex marriage."); Sevcik v. Sandoval, 911 F.
Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs'
equal protection claim). Other courts disagree and have decided substantially
similar issues without consideration of Baker. See, e.g., Perry v.
Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California's
prohibition of same-sex marriage violated the Due Process and Equal Protection
Clauses of the Fourteenth Amendment). In any event, all of these cases were
decided before the Supreme Court issued its opinion in Windsor.
As discussed above, the Court's decision in Windsor does not
answer the question presented here, but its reasoning is nevertheless highly
relevant and is therefore a significant doctrinal development. Importantly, the
Windsor Court foresaw that its ruling would precede a number of lawsuits in
state and lower federal courts raising the question of a state's ability to
prohibit same-sex marriage, a fact that was noted by two dissenting justices.
The Honorable John Roberts wrote that the Court "may in the future have to
resolve challenges to state marriage definitions affecting same-sex
couples." Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And
Justice Scalia even recommended how this court should interpret the Windsor
decision when presented with the question that is now before it: "I do not
mean to suggest disagreement . . . that lower federal courts and state courts
can distinguish today's case when the issue before them is state denial of marital
status to same-sex couples." Id. at 2709 (Scalia, J., dissenting). It is
also notable that while the Court declined to reach the merits in Perry v.
Hollingsworth because the petitioners lacked standing to pursue the appeal, the
Court did not dismiss the case outright for lack of a substantial federal
question. See 133 S. Ct. 2652 (2013). Given the Supreme Court's disposition of
both Windsor and Perry, the court finds that there is no longer any doubt that
the issue currently before the court in this lawsuit presents a substantial
question of federal law.
As a result, Baker v. Nelson is no longer controlling
precedent and the court proceeds to address the merits of the question
presented here.
IV. Amendment 3 Violates the Plaintiffs' Due Process Rights
The State of Utah contends that what is at stake in this
lawsuit is the State's right to define marriage free from federal interference.
The Plaintiffs counter that what is really at issue is an individual's ability
to protect his or her fundamental rights from unreasonable interference by the
state government. As discussed above, the parties have defined the two
important principles that are in tension in this matter. While Utah exercises
the "unquestioned authority" to regulate and define marriage, Windsor,
133 S. Ct. at 2693, it must nevertheless do so in a way that does not infringe
the constitutional rights of its citizens. See id. at 2692 (noting that the
"incidents, benefits, and obligations of marriage" may vary from
state to state but are still "subject to constitutional guarantees").
As a result, the court's role is not to define marriage, an exercise that would
be improper given the states' primary authority in this realm. Instead, the
court's analysis is restricted to a determination of what individual rights are
protected by the Constitution. The court must then decide whether the State's
definition and regulation of marriage impermissibly infringes those rights.
The Constitution guarantees that all citizens have certain
fundamental rights. These rights vest in every person over whom the
Constitution has authority and, because they are so important, an individual's
fundamental rights "may not be submitted to vote; they depend on the
outcome of no elections." W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624, 638 (1943). When the Constitution was first ratified, these rights were
specifically articulated in the Bill of Rights and protected an individual from
certain actions of the federal government. After the nation's wrenching
experience in the Civil War, the people adopted the Fourteenth Amendment, which
holds: "No State shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § 1. The Supreme Court has held that the
Due Process Clause of the Fourteenth Amendment applies to "matters of substantive
law as well as to matters of procedure. Thus all fundamental rights comprised
within the term liberty are protected by the Federal constitution from invasion
by the States." Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846
(1992) (quoting Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J.,
concurring)).
The most familiar of an individual's substantive liberties
are those recognized by the Bill of Rights, and the Supreme Court has held that
the Due Process Clause of the Fourteenth Amendment incorporates most portions
of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391
U.S. 145, 147-48 (1968) (discussing incorporation of certain rights from the
First, Fourth, Fifth, and Sixth Amendments); McDonald v. City of Chicago, 130
S. Ct. 3020, 3050 (2010) (incorporating the Second Amendment). In Planned
Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court recognized
the authority of an argument first made by the Honorable John Marshall Harlan
II that the Due Process Clause also protects a number of unenumerated rights
from unreasonable invasion by the State:
[T]he full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This
"liberty" is not a series of isolated points pricked out in terms of
the taking of property; the freedom of speech, press, and religion; the right
to keep and bear arms; the freedom from unreasonable searches and seizures; and
so on. It is a rational continuum which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless restraints, . . .
and which also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to
justify their abridgement.
Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J.,
dissenting from dismissal on jurisdictional grounds), quoted in Casey, 505 U.S.
at 848-49.
A. Supreme Court Cases Protecting Marriage as a Fundamental
Right
The right to marry is an example of a fundamental right that
is not mentioned explicitly in the text of the Constitution but is nevertheless
protected by the guarantee of liberty under the Due Process Clause. The Supreme
Court has long emphasized that the right to marry is of fundamental importance.
In Maynard v. Hill, the Court characterized marriage as "the most
important relation in life" and as "the foundation of the family and
society, without which there would be neither civilization nor progress."
125 U.S. 190, 205, 211 (1888). In Meyer v. Nebraska, the Court recognized that
the right "to marry, establish a home and bring up children" is a
central part of the liberty protected by the Due Process Clause. 262 U.S. 390,
399 (1923). And in Skinner v. Oklahoma ex rel. Williamson, the Court ruled that
marriage is "one of the basic civil rights of man." 316 U.S. 535, 541
(1942).
In more recent cases, the Court has held that the right to
marry implicates additional rights that are protected by the Fourteenth
Amendment. For instance, the Court's decision in Griswold v. Connecticut, in
which the Court struck down a Connecticut law that prohibited the use of
contraceptives, established that the right to marry is intertwined with an
individual's right of privacy. The Court observed:
We deal with a right of privacy older than the Bill of
Rights—older than our political parties, older than our school system. Marriage
is a coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an association for as
noble a purpose as any involved in our prior decisions.
381 U.S. 479, 486 (1965). And in M.L.B. v. S.L.J., the Court
described marriage as an associational right: "Choices about marriage,
family life, and the upbringing of children are among associational rights this
Court has ranked `of basic importance in our society,' rights sheltered by the
Fourteenth Amendment against the State's unwarranted usurpation, disregard, or
disrespect." 519 U.S. 102, 116 (1996) (citation omitted).
The Supreme Court has consistently held that a person must
be free to make personal decisions related to marriage without unjustified
government interference. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632, 639-40 (1974) ("This Court has long recognized that freedom of
personal choice in matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment."); Carey
v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977) ("[I]t is clear
that among the decisions that an individual may make without unjustified
government interference are personal decisions relating to marriage,
procreation, contraception, family relationships, and child rearing and
education." (citations and internal quotation marks omitted)); Hodgson v.
Minnesota, 497 U.S. 417, 435 (1990) ("But the regulation of
constitutionally protected decisions, such as where a person shall reside or
whom he or she shall marry, must be predicated on legitimate state concerns
other than disagreement with the choice the individual has made."). In
Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court emphasized
the high degree of constitutional protection afforded to an individual's
personal choices about marriage and other intimate decisions:
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of existence,
of meaning, of the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were they formed
under compulsion of the State.
Casey, 505 U.S. at 851.
Given the importance of marriage as a fundamental right and
its relation to an individual's rights to liberty, privacy, and association,
the Supreme Court has not hesitated to invalidate state laws pertaining to
marriage whenever such a law intrudes on an individual's protected realm of
liberty. Most famously, the Court struck down Virginia's law against
interracial marriage in Loving v. Virginia, 388 U.S. 1, 12 (1967). The Court
found that Virginia's anti-miscegenation statute violated both the Equal Protection
Clause and the Due Process Clause of the Fourteenth Amendment. Id. The Court
has since noted that Loving was correctly decided, even though mixed-race
marriages had previously been illegal in many states[7] and, moreover, were not
specifically protected from government interference at the time the Fourteenth
Amendment was ratified: "Marriage is mentioned nowhere in the Bill of
Rights and interracial marriage was illegal in most States in the 19th century,
but the Court was no doubt correct in finding it to be an aspect of liberty
protected against state interference by the substantive component of the Due
Process Clause in Loving v. Virginia." Casey, 505 U.S. at 847-48; see also
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010) ("[T]he
Court recognized that race restrictions, despite their historical prevalence,
stood in stark contrast to the concepts of liberty and choice inherent in the
right to marry.").
In addition to the anti-miscegenation laws the Supreme Court
struck down in Loving, the Supreme Court has held that other state regulations
affecting marriage are unconstitutional where these laws infringe on an
individual's access to marriage. In Zablocki v. Redhail, the Court considered a
Wisconsin statute that required any Wisconsin resident who had children that
were not currently in the resident's custody to obtain a court order before the
resident was permitted to marry. 434 U.S. 374, 375 (1978). The statute mandated
that the court should not grant permission to marry unless the resident proved
that he was in compliance with any support obligation for his out-of-custody
children, and could also show that any children covered by such a support order
"[were] not then and [were] not likely thereafter to become public charges."
Id. (quoting Wis. Stat. § 245.10 (1973)). The Court found that, while the State
had a legitimate and substantial interest in the welfare of children in
Wisconsin, the statute was nevertheless unconstitutional because it was not
"closely tailored to effectuate only those interests" and
"unnecessarily impinge[d] on the right to marry[.]" Id. at 388. The
Court distinguished the Loving, 388 U.S. at 6 n.5. statute at issue from
reasonable state regulations related to marriage that would not require any
heightened review:
By reaffirming the fundamental character of the right to
marry, we do not mean to suggest that every state regulation which relates in
any way to the incidents of or prerequisites for marriage must be subjected to
rigorous scrutiny. To the contrary, reasonable regulations that do not
significantly interfere with decisions to enter into the marital relationship
may legitimately be imposed.
Id. at 386. As the Honorable John Paul Stevens noted in his
concurring opinion, "A classification based on marital status is
fundamentally different from a classification which determines who may lawfully
enter into the marriage relationship." Id. at 403-04 (Stevens, J.,
concurring).
In Turner v. Safley, the Court struck down a Missouri
regulation that prohibited inmates from marrying unless the prison
superintendent approved of the marriage. 482 U.S. 78, 99-100 (1987). The Court
held that inmates retained their fundamental right to marry even though they
had a reduced expectation of liberty in prison. Id. at 96. The Court emphasized
the many attributes of marriage that prisoners could enjoy even if they were
not able to have sexual relations:
First, inmate marriages, like others, are expressions of
emotional support and public commitment. These elements are an important and
significant aspect of the marital relationship. In addition, many religions
recognize marriage as having spiritual significance; for some inmates and their
spouses, therefore, the commitment of marriage may be an exercise of religious
faith as well as an expression of personal dedication. Third, most inmates
eventually will be released by parole or commutation, and therefore most inmate
marriages are formed in the expectation that they ultimately will be fully
consummated. Finally, marital status often is a precondition to the receipt of
government benefits (e.g., Social Security benefits), property rights (e.g.,
tenancy by the entirety, inheritance rights), and other, less tangible benefits
(e.g., legitimation of children born out of wedlock). These incidents of
marriage, like the religious and personal aspects of the marriage commitment,
are unaffected by the fact of confinement or the pursuit of legitimate
corrections goals.
Id. at 95-96.
These cases demonstrate that the Constitution protects an
individual's right to marry as an essential part of the right to liberty. The
right to marry is intertwined with the rights to privacy and intimate
association, and an individual's choices related to marriage are protected
because they are integral to a person's dignity and autonomy. While states have
the authority to regulate marriage, the Supreme Court has struck down several
state regulations that impermissibly burdened an individual's ability to
exercise the right to marry. With these general observations in mind, the court
turns to the specific question of Utah's ability to prohibit same-sex marriage.
B. Application of the Court's Jurisprudence to Amendment 3
The State does not dispute, nor could it, that the
Plaintiffs possess the fundamental right to marry that the Supreme Court has
protected in the cases cited above. Like all fundamental rights, the right to
marry vests in every American citizen. See Zablocki, 434 U.S. at 384
("Although Loving arose in the context of racial discrimination, prior and
subsequent decisions of this Court confirm that the right to marry is of
fundamental importance for all individuals."). The State asserts that
Amendment 3 does not abridge the Plaintiffs' fundamental right to marry because
the Plaintiffs are still at liberty to marry a person of the opposite sex. But
this purported liberty is an illusion. The right to marry is not simply the
right to become a married person by signing a contract with someone of the
opposite sex. If marriages were planned and arranged by the State, for example,
these marriages would violate a person's right to marry because such
arrangements would infringe an individual's rights to privacy, dignity, and
intimate association. A person's choices about marriage implicate the heart of
the right to liberty that is protected by the Fourteenth Amendment. See Casey,
505 U.S. at 851. The State's argument disregards these numerous associated
rights because the State focuses on the outward manifestations of the right to
marry, and not the inner attributes of marriage that form the core
justifications for why the Constitution protects this fundamental human right.
Moreover, the State fails to dispute any of the facts that
demonstrate why the Plaintiffs' asserted right to marry someone of the opposite
sex is meaningless. The State accepts without contest the Plaintiffs' testimony
that they cannot develop the type of intimate bond necessary to sustain a
marriage with a person of the opposite sex. The Plaintiffs have not come to
this realization lightly, and their recognition of their identity has often
risked their family relationships and work opportunities. For instance, Kody
and Laurie both worried that they would lose their jobs as English teachers if
they were open about their sexual identity. Kate's previous partner did lose
her job because she was a lesbian, and Kate may have been let go from her
position with the National Park Service for the same reason. Karen's family
never accepted her identity, and Moudi testified that he remained cautious about
openly discussing his sexuality because he feared that his mother might be
ridiculed. The Plaintiffs' testimony supports their assertions that their
sexual orientation is an inherent characteristic of their identities.
Forty years ago, these assertions would not have been
accepted by a court without dispute. In 1973, the American Psychiatric
Association still defined homosexuality as a mental disorder in the Diagnostic
and Statistical Manual of Mental Disorders (DSM-II), and leading experts
believed that homosexuality was simply a lifestyle choice. With the increased
visibility of gay men and lesbians in the past few decades, a wealth of new
knowledge about sexuality has upended these previous beliefs. Today, the State
does not dispute the Plaintiffs' testimony that they have never been able to
develop feelings of deep intimacy for a person of the opposite sex, and the
State presents no argument or evidence to suggest that the Plaintiffs could
change their identity if they desired to do so. Given these undisputed facts,
it is clear that if the Plaintiffs are not allowed to marry a partner of the
same sex, the Plaintiffs will be forced to remain unmarried. The effect of
Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the
ability to exercise one of their constitutionally protected rights. The State's
prohibition of the Plaintiffs' right to choose a same-sex marriage partner
renders their fundamental right to marry as meaningless as if the State
recognized the Plaintiffs' right to bear arms but not their right to buy
bullets.
While admitting that its prohibition of same-sex marriage
harms the Plaintiffs, the State argues that the court's characterization of
Amendment 3 is incorrect for three reasons: (1) the Plaintiffs are not
qualified to enter into a marriage relationship; (2) the Plaintiffs are seeking
a new right, not access to an existing right; and (3) history and tradition
have not recognized a right to marry a person of the same sex. The court
addresses each of these arguments in turn.
1. The Plaintiffs Are Qualified to Marry
First, the State contends that same-sex partners do not
possess the qualifications to enter into a marriage relationship and are
therefore excluded from this right as a definitional matter. As in other
states, the purposes of marriage in Utah include "the state recognition
and approval of a couple's choice to live with each other, to remain committed
to one another and to form a household based on their own feelings about one
another[,] and to join in an economic partnership and support one another and
any dependents." Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 961 (N.D.
Cal. 2010). There is no dispute that the Plaintiffs are able to form a
committed relationship with one person to the exclusion of all others. There is
also no dispute that the Plaintiffs are capable of raising children within this
framework if they choose to do so. The State even salutes "[t]he worthy
efforts of same-sex couples to rear children." (Defs.' Mem. in Opp'n, at
46 n.7, Dkt. 84.) Nevertheless, the State maintains that same-sex couples are
distinct from opposite-sex couples because they are not able to naturally
reproduce with each other. The State points to Supreme Court cases that have
linked the importance of marriage to its relationship to procreation. See,
e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)
("Marriage and procreation are fundamental to the very existence and
survival of the race.").
The court does not find the State's argument compelling
because, however persuasive the ability to procreate might be in the context of
a particular religious perspective, it is not a defining characteristic of
conjugal relationships from a legal and constitutional point of view. The
State's position demeans the dignity not just of same-sex couples, but of the many
oppositesex couples who are unable to reproduce or who choose not to have
children. Under the State's reasoning, a post-menopausal woman or infertile man
does not have a fundamental right to marry because she or he does not have the
capacity to procreate. This proposition is irreconcilable with the right to
liberty that the Constitution guarantees to all citizens.
At oral argument, the State attempted to distinguish
post-menopausal women from gay men and lesbians by arguing that older women
were more likely to find themselves in the position of caring for a grandchild
or other relative. But the State fails to recognize that many same-sex couples
are also in the position of raising a child, perhaps through adoption or
surrogacy. The court sees no support for the State's suggestion that same-sex
couples are interested only in a "consent-based" approach to
marriage, in which marriage focuses on the strong emotional attachment and
sexual attraction of the two partners involved. See Windsor, 133 S. Ct. at 2718
(Alito, J., dissenting). Like opposite-sex couples, same-sex couples may decide
to marry partly or primarily for the benefits and support that marriage can
provide to the children the couple is raising or plans to raise. Same-sex
couples are just as capable of providing support for future generations as
opposite-sex couples, grandparents, or other caregivers. And there is no
difference between same-sex couples who choose not to have children and those
opposite-sex couples who exercise their constitutionally protected right not to
procreate. See Griswold v. Connecticut, 381 U.S. 479 (1965).
In any event, the State's argument also neglects to consider
the number of additional important attributes of marriage that exist besides
procreation. As noted above, the Supreme Court has discussed those attributes
in the context of marriages between inmates. Turner v. Safley, 482 U.S. 78,
95-96 (1987). While the Supreme Court noted that some inmates might one day be
able to consummate their marriages when they were released, the Court found
that marriage was important irrespective of its relationship to procreation
because it was an expression of emotional support and public commitment, it was
spiritually significant, and it provided access to important legal and government
benefits. Id. These attributes of marriage are as applicable to same-sex
couples as they are to opposite-sex couples.
2. The Plaintiffs Seek Access to an Existing Right
The State's second argument is that the Plaintiffs are
really seeking a new right, not access to an existing right. To establish a new
fundamental right, the court must determine that the right is "deeply
rooted in this Nation's history and tradition" and "implicit in the
concept of ordered liberty," such that "neither liberty nor justice
would exist if [it] were sacrificed." Washington v. Glucksberg, 521 U.S.
702, 721 (1997) (citations omitted). Because same-sex marriage has only
recently been allowed by a number of states, the State argues that an
individual's right to marry someone of the same sex cannot be a fundamental
right. But the Supreme Court did not adopt this line of reasoning in the
analogous case of Loving v. Virginia, 388 U.S. 1 (1967). Instead of declaring a
new right to interracial marriage, the Court held that individuals could not be
restricted from exercising their existing right to marry on account of the race
of their chosen partner. Id. at 12. Similarly, the Plaintiffs here do not seek
a new right to same-sex marriage, but instead ask the court to hold that the State
cannot prohibit them from exercising their existing right to marry on account
of the sex of their chosen partner.
The alleged right to same-sex marriage that the State claims
the Plaintiffs are seeking is simply the same right that is currently enjoyed by
heterosexual 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. This right is deeply rooted
in the nation's history and implicit in the concept of ordered liberty because
it protects an individual's ability to make deeply personal choices about love
and family free from government interference. And, as discussed above, this
right is enjoyed by all individuals. If the right to same-sex marriage were a
new right, then it should make new protections and benefits available to all
citizens. But heterosexual individuals are as likely to exercise their
purported right to same-sex marriage as gay men and lesbians are to exercise
their purported right to opposite-sex marriage. Both same-sex and opposite-sex
marriage are therefore simply manifestations of one right—the right to
marry—applied to people with different sexual identities.
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 sex, the realization that this assumption is false does not 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 sex to the same degree that the Constitution protects the right of
heterosexual individuals to marry a person of the opposite sex.
Because the right to marry has already been established as a
fundamental right, the court finds that the Glucksberg analysis is inapplicable
here. The Plaintiffs are seeking access to an existing right, not the
declaration of a new right.
3. Tradition and History Are Insufficient Reasons to Deny
Fundamental Rights to an Individual.
Finally, the State contends that the fundamental right to
marriage cannot encompass the right to marry someone of the same sex because
this right has never been interpreted to have this meaning in the past. The
court is not persuaded by the State's argument. The Constitution is not so
rigid that it always mandates the same outcome even when its principles operate
on a new set of facts that were previously unknown:
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.
Lawrence v. Texas, 539 U.S. 558, 578-79 (2003). Here, it is
not the Constitution that has changed, but the knowledge of what it means to be
gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able
to develop a committed, intimate relationship with a person of the same sex but
not with a person of the opposite sex. The court, and the State, must adapt to
this changed understanding.
C. Summary of Due Process Analysis
The Fourteenth Amendment protects the liberty rights of all
citizens, and none of the State's arguments presents a compelling reason why
the scope of that right should be greater for heterosexual individuals than it
is for gay and lesbian individuals. If, as is clear from the Supreme Court
cases discussing the right to marry, a heterosexual person's choices about
intimate association and family life are protected from unreasonable government
interference in the marital context, then a gay or lesbian person also enjoys
these same protections.
The court's holding is supported, even required, by the
Supreme Court's recent opinion concerning the scope of protection that the
Fourteenth Amendment provides to gay and lesbian citizens. In Lawrence v.
Texas, the Court overruled its previous decision in Bowers v. Hardwick, 478
U.S. 186 (1986), and held that the Due Process Clause protected an individual's
right to have sexual relations with a partner of the same sex. 539 U.S. at 578.
The Court ruled: "The Texas [sodomy] statute furthers no legitimate state
interest which can justify its intrusion into the personal and private life of
the individual." Id. While the Court stated that its opinion did not
address "whether the government must give formal recognition to any relationship
that homosexual persons seek to enter," id., the Court confirmed that
"our laws and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education" and held that "[p]ersons
in a homosexual relationship may seek autonomy for these purposes, just as
heterosexual persons do." Id. at 574 (emphasis added). The court therefore
agrees with the portion of Justice Scalia's dissenting opinion in Lawrence in
which Justice Scalia stated that the Court's reasoning logically extends to
protect an individual's right to marry a person of the same sex:
Today's opinion dismantles the structure of constitutional
law that has permitted a distinction to be made between heterosexual and
homosexual unions, insofar as formal recognition in marriage is concerned. If
moral disapprobation of homosexual conduct is "no legitimate state
interest" for purposes of proscribing that conduct, . . . what
justification could there possibly be for denying the benefits of marriage to
homosexual couples exercising "the liberty protected by the
Constitution"?
Id. at 604-05 (Scalia, J., dissenting) (citations omitted).
The Supreme Court's decision in Lawrence removed the only
ground—moral disapproval—on which the State could have at one time relied to
distinguish the rights of gay and lesbian individuals from the rights of
heterosexual individuals. The only other distinction the State has attempted to
make is its argument that same-sex couples are not able to naturally reproduce
with each other. But, of course, neither can thousands of opposite-sex couples
in Utah. As a result, there is no legitimate reason that the rights of gay and
lesbian individuals are any different from those of other people. All citizens,
regardless of their sexual identity, have a fundamental right to liberty, and
this right protects an individual's ability to marry and the intimate choices a
person makes about marriage and family.
The court therefore finds that the Plaintiffs have a
fundamental right to marry that protects their choice of a same-sex partner.
D. Amendment 3 Does Not Survive Strict Scrutiny
The court's determination that the fundamental right to
marry encompasses the Plaintiffs' right to marry a person of the same sex is
not the end of the court's analysis. The State may pass a law that restricts a
person's fundamental rights provided that the law is "narrowly tailored to
serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302
(1993). For instance, a state may permissibly regulate the age at which a
person may be married because the state has a compelling interest in protecting
children against abuse and coercion. Similarly, a state need not allow an
individual to marry if that person is mentally incapable of forming the
requisite consent, or if that prohibition is part of the punishment for a
prisoner serving a life sentence. See Butler v. Wilson, 415 U.S. 953 (1974)
(summarily affirming decision to uphold a state law that prohibited prisoners
incarcerated for life from marrying).
The court finds no reason that the Plaintiffs are comparable
to children, the mentally incapable, or life prisoners. Instead, the Plaintiffs
are ordinary citizens—business owners, teachers, and doctors—who wish to marry
the persons they love. As discussed below, the State of Utah has not
demonstrated a rational, much less a compelling, reason why the Plaintiffs
should be denied their right to marry. Consequently, the court finds that
Amendment 3 violates the Plaintiffs' due process rights under the Fourteenth
Amendment.
V. Amendment 3 Violates the Plaintiffs' Right to Equal
Protection
The Equal Protection Clause of the Fourteenth Amendment
provides that no state shall "deny to any person within its jurisdiction
the equal protection of its laws." U.S. Const. amend. XIV, § 1. The
Constitution "neither knows nor tolerates classes among citizens."
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). But the
guarantee of equal protection coexists with the practical necessity that most
legislation must classify for some purpose or another. See Romer v. Evans, 517
U.S. 620, 631 (1996).
To determine whether a piece of legislation violates the
Equal Protection Clause, the court first looks to see whether the challenged
law implicates a fundamental right. "When a statutory classification
significantly interferes with the exercise of a fundamental right, it cannot be
upheld unless it is supported by sufficiently important state interests and is
closely tailored to effectuate only those interests." Zablocki, 434 U.S.
at 388; see also Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)
("We have long been mindful that where fundamental rights and liberties
are asserted under the Equal Protection Clause, classifications which might
invade or restrain them must be closely scrutinized and carefully
confined."). Here, the court finds that Amendment 3 interferes with the
exercise of the Plaintiffs' fundamental right to marry. As discussed above,
Amendment 3 is therefore unconstitutional because the State has not shown that
the law is narrowly tailored to meet a compelling governmental interest. But
even if the court disregarded the impact of Amendment 3 on the Plaintiffs'
fundamental rights, the law would still fail for the reasons discussed below.
The Plaintiffs argue that Amendment 3 discriminates against
them on the basis of their sex and sexual identity in violation of the Equal
Protection Clause. When a state regulation adversely affects members of a
certain class, but does not significantly interfere with the fundamental rights
of the individuals in that class, courts first determine how closely they
should scrutinize the challenged regulation. Courts must not simply defer to
the State's judgment when there is reason to suspect "prejudice against
discrete and insular minorities . . . which tends seriously to curtail the
operation of those political processes ordinarily relied upon to protect
minorities[.]" United States v. Carolene Prods. Co., 304 U.S. 144, 152-53
n.4 (1938).
To decide whether a challenged state law impermissibly
discriminates against members of a class in violation of the Equal Protection
Clause, the Supreme Court has developed varying tiers of scrutiny that courts
apply depending on what class of citizens is affected. "Classifications
based on race or national origin" are considered highly suspect and
"are given the most exacting scrutiny." Clark v. Jeter, 486 U.S. 456,
461 (1988). On the other end of the spectrum, courts must uphold a legislative
classification that does not target a suspect class "so long as it bears a
rational relation to some legitimate end." Romer, 517 U.S. at 631.
"Between these extremes of rational basis review and strict scrutiny lies
a level of intermediate scrutiny, which generally has been applied to
discriminatory classifications based on sex or illegitimacy." Clark, 486
U.S. at 461. Classifications receiving this intermediate level of scrutiny are
quasi-suspect classifications that can be sustained only if they are
"substantially related to an important governmental objective." Id.
A. Heightened Scrutiny
The Plaintiffs assert three theories why the court should
apply some form of heightened scrutiny to this case. While the court discusses
each of these theories below, it finds that it need not apply heightened
scrutiny here because Amendment 3 fails under even the most deferential level
of review.
1. Sex Discrimination
The Plaintiffs argue that the court should apply heightened
scrutiny to Amendment 3 because it discriminates on the basis of an
individual's sex. As noted above, classifications based on sex can be sustained
only where the government demonstrates that they are "substantially
related" to an "important governmental objective[.]" United
States v. Virginia, 518 U.S. 515, 533 (1996) (citation omitted); Concrete Works
v. City of Denver, 36 F.3d 1513, 1519 (10th Cir. 1994) ("Gender-based
classifications . . . are evaluated under the intermediate scrutiny
rubric").
The State concedes that Amendment 3 involves sex-based
classifications because it prohibits a man from marrying another man, but does
not prohibit that man from marrying a woman. Nevertheless, the State argues
that Amendment 3 does not discriminate on the basis of sex because its
prohibition against same-sex marriage applies equally to both men and women.
The Supreme Court rejected an analogous argument in Loving v. Virginia, 388
U.S. 1, 8-9 (1967). In Loving, Virginia argued that its anti-miscegenation laws
did not discriminate based on race because the prohibition against mixed-race
marriage applied equally to both white and black citizens. Id. at 7-8. The
Court found that "the fact of equal application does not immunize the
statute from the very heavy burden of justification which the Fourteenth
Amendment has traditionally required of state statutes drawn according to
race." Id. at 9. Applying the same logic, the court finds that the fact of
equal application to both men and women does not immunize Utah's Amendment 3
from the heightened burden of justification that the Fourteenth Amendment
requires of state laws drawn according to sex.
But because the court finds that Amendment 3 fails rational
basis review, it need not analyze why Utah is also unable to satisfy the more
rigorous standard of demonstrating an "exceedingly persuasive"
justification for its prohibition against same-sex marriage. Virginia, 518 U.S.
at 533.
2. Sexual Orientation as a Suspect Class
The Plaintiffs assert that, even if Amendment 3 does not
discriminate on the basis of sex, it is undisputed that the law discriminates
on the basis of a person's sexual orientation. The Plaintiffs maintain that gay
men and lesbians as a class exhibit the "traditional indicia" that
indicate they are especially at risk of discrimination. San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). The Plaintiffs therefore urge the
court to hold that sexual orientation should be considered at least a
quasi-suspect class, a holding which would require the court to apply
heightened scrutiny to its analysis of Amendment 3.
The court declines to address the Plaintiffs' argument
because it finds that it is bound by the Tenth Circuit's discussion of this
issue. In Price-Cornelison v. Brooks, the Tenth Circuit considered a claim that
an undersheriff refused to enforce a protective order because the domestic
violence victim was a lesbian. 524 F.3d 1103, 1105 (2008). The court held that
the plaintiff's claim did not "implicate a protected class, which would
warrant heightened scrutiny." Id. at 1113. In a footnote, the court
supported its statement with a number of citations to cases from the Tenth
Circuit and other Courts of Appeal. See id. at 1113 n.9.
The American Civil Liberties Union submitted an amicus brief
arguing that the Tenth Circuit had no occasion to decide whether heightened
scrutiny would be appropriate in Price-Cornelison because the court found that
the discrimination at issue did not survive even rational basis review. Id. at
1114. As a result, the ACLU contends that the Tenth Circuit's statement was
dicta and not binding. The court is not persuaded by the ACLU's argument. Even
if the Tenth Circuit did not need to reach this question, the court's extensive
footnote in Price-Cornelison clearly indicates that the Tenth Circuit currently
applies only rational basis review to classifications based on sexual
orientation. Unless the Supreme Court or the Tenth Circuit hold differently,
the court continues to follow this approach.
3. Animus
The Plaintiffs contend that Amendment 3 is based on animus
against gay and lesbian individuals and that the court should therefore apply a
heightened level of scrutiny to the law. As discussed below, there is some
support for the Plaintiffs' argument in the Supreme Court opinions of Romer v.
Evans, 517 U.S. 620 (1996) and United States v. Windsor, 133 S. Ct. 2675
(2013). But because the Supreme Court has not yet delineated the contours of
such an approach, this court will continue to apply the standard rational basis
test.
In Romer, the Supreme Court considered an amendment to the
Colorado Constitution that prohibited any department or agency of the State of
Colorado or any Colorado municipality from adopting any law or regulation that
would protect gay men, lesbians, or bisexuals from discrimination. 517 U.S. at
624. The amendment not only prevented future attempts to establish these
protections, but also repealed ordinances that had already been adopted by the
cities of Denver, Boulder, and Aspen. Id. at 623-24. The Supreme Court held
that the amendment was unconstitutional because it violated the Equal
Protection Clause. Id. at 635. While the Court cited the rational basis test,
the Court also stated that the Colorado law "confound[ed] this normal
process of judicial review." Id. at 633. The Court then held that the law
had no rational relation to a legitimate end for two reasons. First, the Court
ruled that it was not "within our constitutional tradition" to enact
a law "declaring that in general it shall be more difficult for one group
of citizens than for all others to seek aid from the government[.]" Id.
Second, the Court held that "laws of the kind now before us raise the
inevitable inference that the disadvantage imposed is born of animosity toward
the class of persons affected." Id. at 634. The Court's analysis focused
more on the purpose and effect of the Colorado amendment than on a consideration
of the purported legitimate interests the State asserted in support of its law.
The Supreme Court's opinion in Windsor is similar. The Court
did not analyze the legitimate interests cited by DOMA's defenders as would be
typical in a rational basis review. See Windsor, 133 S. Ct. at 2707 (Scalia,
J., dissenting) ("[The majority] makes only a passing mention of the
`arguments put forward' by the Act's defenders, and does not even trouble to
paraphrase or describe them."). Instead, the Court focused on the
"design, purpose, and effect of DOMA," id. at 2689, and held that the
law's "avowed purpose and practical effect" was "to impose a
disadvantage, a separate status, and so a stigma" on same-sex couples that
a state had permitted to wed. Id. at 2693. Because DOMA's "principal
purpose" was "to impose inequality," id. at 2694, the Court
ruled that the law deprived legally wed same-sex couples of "an essential
part of the liberty protected by the Fifth Amendment." Id. at 2692.
In both Romer and Windsor, the Court cited the following
statement from Louisville Gas & Elec. Co. v. Coleman: "Discriminations
of an unusual character especially suggest careful consideration to determine
whether they are obnoxious to the constitutional provision." 277 U.S. 32,
37-38 (1928), quoted in Romer, 517 U.S. at 633. Indeed, the Windsor Court held
that "discriminations of an unusual character especially require careful
consideration." 133 S. Ct. at 2693 (emphasis added) (citation omitted).
The Court's emphasis on discriminations of an unusual character suggests that,
when presented with an equal protection challenge, courts should first analyze
the law's design, purpose, and effect to determine whether the law is subject
to "careful consideration." If the principal purpose or effect of a
law is to impose inequality, a court need not even consider whether the class
of citizens that the law effects requires heightened scrutiny or a rational
basis approach. Such laws are "not within our constitutional
tradition," Romer, 517 U.S. at 633, and violate the Equal Protection
Clause regardless of the class of citizens that bears the disabilities imposed
by the law. If, on the other hand, the law merely distributes benefits
unevenly, then the law is subject to heightened scrutiny only if the disadvantages
imposed by that law are borne by a class of people that has a history of
oppression and political powerlessness.
While this analysis appears to follow the Supreme Court's
reasoning in Romer and Windsor, the court is wary of adopting such an approach
here in the absence of more explicit guidance. For instance, the Supreme Court
has not elaborated how a court should determine whether a law imposes a
discrimination of an unusual character. There are a number of reasons why
Amendment 3 is similar to both DOMA and the Colorado amendment that the Supreme
Court struck down in Windsor and Romer. First, the avowed purpose and practical
effect of Amendment 3 is to deny the responsibilities and benefits of marriage
to same-sex couples, which is another 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 no domestic union could be given the same or
substantially equivalent legal effect as marriage. This wording suggests that
the imposition of inequality was not 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-sex couples, the
State nevertheless passed a constitutional amendment to codify 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-sex marriages. Goodridge v. Dep't
of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003). The Utah legislature believed
that a constitutional amendment was necessary to maintain Utah's ban on
same-sex 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-sex
partner. Amendment 3 thereby preemptively denied rights to gay and lesbian
citizens of Utah that they may have already had under the Utah Constitution.
But there are also reasons why Amendment 3 may be
distinguishable from the laws the Supreme Court has previously held to be
discriminations of an unusual character. Most notably, the Court has not
articulated to what extent such a discrimination must be motivated by a
"bare . . . desire to harm a politically unpopular group." U.S. Dep't
of Agric. v. Moreno, 413 U.S. 528, 534 (1973). The Plaintiffs argue that
Amendment 3 was motivated by animus and urge the court to consider the
statements in the Voter Information Pamphlet that was provided to Utah voters.
The Pamphlet includes arguments made by Amendment 3's proponents that the
amendment was necessary to "maintain[] public morality" and to ensure
the continuation of "the ideal relationship where men, women and children
thrive best." (Utah Voter Information Pamphlet to General Election on Nov.
2, 2004, at 36, Dkt. 32-2.) The Plaintiffs submit that these statements
demonstrate that Amendment 3 was adopted to further privately held moral views
that same-sex couples are immoral and inferior to opposite-sex couples.
While the Plaintiffs argue that many Utah citizens voted for
Amendment 3 out of a dislike of gay and lesbian individuals, the court finds
that it is impossible to determine what was in the mind of each individual
voter. Some citizens may have voted for Amendment 3 purely out of a belief that
the amendment would protect the benefits of opposite-sex marriage. Of course,
good intentions do not save a law if the law bears no rational connection to
its stated legitimate interests, but this analysis is the test the court
applies when it follows the Supreme Court's rational basis jurisprudence. It is
unclear how a mix of animus and good intentions affects the determination of
whether a law imposes a discrimination of such unusual character that it
requires the court to give it careful consideration.
In any event, the theory of heightened scrutiny that the
Plaintiffs advocate is not necessary to the court's determination of Amendment
3's constitutionality. The court has already held that Amendment 3 burdens the
Plaintiffs' fundamental right to marriage and is therefore subject to strict
scrutiny. And, as discussed below, the court finds that Amendment 3 bears no
rational relationship to any legitimate state interests and therefore fails
rational basis review. It may be that some laws neither burden a fundamental
right nor target a suspect class, but nevertheless impose a discrimination of
such unusual character that a court must review a challenge to such a law with
careful consideration. But the court's analysis here does not hinge on that
type of heightened review. The court therefore proceeds to apply the
well-settled rational basis test to Amendment 3.
B. Rational Basis Review
When a law creates a classification but does not target a
suspect class or burden a fundamental right, the court presumes the law is
valid and will uphold it so long as it rationally relates to some legitimate
governmental purpose. See Heller v. Doe, 509 U.S. 312, 319 (1993). The court
defers to the judgment of the legislature or the judgment of the people who
have spoken through a referendum if there is at least a debatable question
whether the underlying basis for the classification is rational. See Minnesota
v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). But even under the most
deferential standard of review, the court must still "insist on knowing
the relation between the classification adopted and the object to be
obtained." Romer v. Evans, 517 U.S. 620, 632 (1996); Lyng v. Int'l Union,
485 U.S. 360, 375 ("[L]egislative enactments must implicate legitimate
goals, and the means chosen by the legislature must bear a rational
relationship to those goals."). This search for a rational relationship "ensure[s]
that classifications are not drawn for the purpose of disadvantaging the group
burdened by the law." Romer, 517 U.S. at 633. As a result, a law must do
more than disadvantage or otherwise harm a particular group to survive rational
basis review. See U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
The State emphasizes that the court must accept any
legislative generalizations, "even when there is an imperfect fit between
means and ends." Heller, 509 U.S. at 321. The court will uphold a
classification provided "the inclusion of one group promotes a legitimate
governmental purpose, and the addition of other groups would not." Johnson
v. Robison, 415 U.S. 361, 383 (1974). Based on this principle, the State argues
that its extension of marriage benefits to opposite-sex couples promotes
certain governmental interests such as responsible procreation and optimal
child-rearing that would not be furthered if marriage benefits were extended to
same-sex couples. But the State poses the wrong question. The court's focus is
not on whether extending marriage benefits to heterosexual couples serves a
legitimate governmental interest. No one disputes that marriage benefits serve
not just legitimate, but compelling governmental interests, which is why the
Constitution provides such protection to an individual's fundamental right to
marry. Instead, courts are required to determine whether there is a rational
connection between the challenged statute and a legitimate state interest.
Here, the challenged statute does not grant marriage benefits to opposite-sex
couples. The effect of Amendment 3 is only to disallow same-sex couples from
gaining access to these benefits. The court must therefore analyze whether the
State's interests in responsible procreation and optimal child-rearing are
furthered by prohibiting same-sex couples from marrying.
This focus on a rational connection between the State's
legitimate interests and the State's exclusion of a group from benefits is
well-supported in a number of Supreme Court decisions. For instance, the Court
held in Johnson v. Robinson that the rational basis test was satisfied by a
congressional decision to exclude conscientious objectors from receiving
veterans' tax benefits because their lives had not been disrupted to the same
extent as the lives of active service veterans. 415 U.S. at 381-82. See also
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448-50 (1985)
(examining the city's interest in denying housing for people with developmental
disabilities, not in continuing to allow residence for others); Moreno, 413
U.S. at 535-38 (testing the federal government's interest in excluding
unrelated households from food stamp benefits, not in maintaining food stamps
for related households); Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972)
(requiring a state interest in the exclusion of unmarried couples from lawful
access to contraception, not merely an interest in continuing to allow married
couples access); Loving v. Virginia, 388 U.S. 1, 9-12 (1967) (examining whether
Virginia's exclusion of interracial couples from marriage violated equal
protection principles independent of Virginia's interest in providing marriage
to same-race couples).
For the reasons stated below, the court finds that the
legitimate government interests that Utah cites are not rationally related to
Utah's prohibition of same-sex marriage.
1. Responsible Procreation
The State argues that the exclusion of same-sex couples from
marriage is justified based on an interest in promoting responsible procreation
within marriage. According to the State, "[t]raditional marriage with its
accompanying governmental benefits provides an incentive for opposite-sex
couples to commit together to form [] a stable family in which their planned,
and especially unplanned, biological children may be raised." (Defs.' Mot.
Summ. J., at 28, Dkt. 33.) The Plaintiffs do not dispute the State's assertion,
but question how disallowing same-sex marriage has any effect on the percentage
of opposite-sex couples that have children within a marriage. The State has
presented no evidence that the number of opposite-sex couples choosing to marry
each other is likely to be affected in any way by the ability of same-sex
couples to marry. Indeed, it defies reason to conclude that allowing same-sex
couples to marry will diminish the example that married opposite-sex couples
set for their unmarried counterparts. Both opposite-sex and same-sex 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-sex marriage and responsible procreation, the relationship is likely to be
the opposite of what the State suggests. Because Amendment 3 does not currently
permit same-sex couples to engage in sexual activity within a marriage, the
State reinforces a norm that sexual activity may take place outside the
marriage relationship.
As a result, any relationship between Amendment 3 and the
State's interest in responsible procreation "is so attenuated as to render
the distinction arbitrary or irrational." City of Cleburne, 473 U.S. at
446; see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal.
2010) ("Permitting same-sex couples to marry will not affect the number of
opposite-sex couples who marry, divorce, cohabit, have children outside of
marriage or otherwise affect the stability of opposite-sex marriage.").
Accordingly, the court finds no rational connection between Amendment 3 and the
state's interest in encouraging its citizens to engage in responsible
procreation.
2. Optimal Child-Rearing
The State also asserts that prohibiting same-sex couples
from marrying "promotes the ideal that children born within a
state-sanctioned marriage will be raised by both a mother and father in a stable
family unit." (Defs.' Mot. Summ. J., at 33, Dkt. 33.) Utah contends that
the "gold standard" for family life is an intact, biological, married
family. (Id. at 34.) By providing incentives for only opposite-sex marriage,
Utah asserts that more children will be raised in this ideal setting. The
Plaintiffs dispute the State's argument that children do better when raised by
opposite-sex parents than by same-sex parents. The Plaintiffs claim that the
State's position is demeaning not only to children of same-sex parents, but
also to adopted children of opposite-sex parents, children of single parents,
and other children living in families that do not meet the State's "gold
standard." Both parties have cited numerous authorities to support their
positions. To the extent the parties have created a factual dispute about the
optimal environment for children, the court cannot resolve this dispute on
motions for summary judgment. But the court need not engage in this debate
because the State's argument is unpersuasive for another reason. Once again,
the State fails to demonstrate any rational link between its prohibition of
same-sex marriage and its goal of having more children raised in the family
structure the State wishes to promote.
There is no reason to believe that Amendment 3 has any
effect on the choices of couples to have or raise children, whether they are
opposite-sex couples or same-sex couples. The State has presented no 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 oppositesex partner. Similarly, the State has presented no evidence
that opposite-sex couples will base their decisions about having children on
the ability of same-sex couples to marry. To the extent the State wishes to see
more children in opposite-sex families, its goals are tied to laws concerning
adoption and surrogacy, not marriage.
If anything, the State's prohibition of same-sex marriage
detracts from the State's goal of promoting optimal environments for children.
The State does not contest the Plaintiffs' assertion that roughly 3,000
children are currently being raised by same-sex couples in Utah. (Patterson
Decl. ¶ 40, Dkt. 85.) These children are also worthy of the State's protection,
yet Amendment 3 harms them for the same reasons that the Supreme Court found
that DOMA harmed the children of same-sex couples. Amendment 3 "humiliates
[] thousands of children now being raised by same-sex couples. The law in
question makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with other families
in their community and in their daily lives." Windsor, 133 S. Ct. at 2694.
Amendment 3 "also brings financial harm to children of same-sex
couples," id. at 2695, because it denies the families of these children a
panoply of benefits that the State and the federal government offer to families
who are legally wed. Finally, Utah's prohibition of same-sex marriage further
injures the children of both opposite-sex and same-sex couples who themselves
are gay or lesbian, and who will grow up with the knowledge that the State does
not believe they are as capable of creating a family as their heterosexual
friends.
For these reasons, Amendment 3 does not make it any more
likely that children will be raised by opposite-sex parents. As a result, the
court finds that there is no rational connection between Utah's prohibition of
same-sex marriage and its goal of fostering an ideal family environment for a
child.
3. Proceeding with Caution
The State contends that it has a legitimate interest in
proceeding with caution when considering expanding marriage to encompass
same-sex couples. But the State is not able to cite any evidence to justify its
fears. The State's argument is analogous to the City of Cleburne's position in
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). In that
case, the City was concerned about issuing a permit for a home for the
developmentally disadvantaged because of the fears of the property owners near
the facility. Id. at 448. The Supreme Court held that "mere negative attitudes,
or fear, . . . are not permissible bases for treating a home for the mentally
retarded differently from apartment houses, multiple dwellings, and the
like." Id. The State can plead an interest in proceeding with caution in
almost any setting. If the court were to accept the State's argument here, it
would turn the rational basis analysis into a toothless and perfunctory review.
In any event, the only evidence that either party submitted
concerning the effect of samesex marriage suggests that the State's fears are
unfounded. In an amicus brief submitted to the Ninth Circuit Court of Appeals
by the District of Columbia and fourteen states that currently permit same-sex
marriage, the states assert that the implementation of same-sex unions in their
jurisdictions has not resulted in any decrease in opposite-sex marriage rates,
any increase in divorce rates, or any increase in the number of nonmarital
births. (Brief of State Amici in Sevcik v. Sandoval, at 24-28, Ex. 13 to Pls.'
Mem. in Opp'n, Dkt. 85-14.) In addition, the process of allowing same-sex
marriage is straightforward and requires no change to state tax, divorce, or
inheritance laws.
For these reasons, the court finds that proceeding with
caution is not a legitimate state interest sufficient to survive rational basis
review.
4. Preserving the Traditional Definition of Marriage
As noted in the court's discussion of fundamental rights,
the State argues that preserving the traditional definition of marriage is
itself a legitimate state interest. But tradition alone cannot form a rational
basis for a law. Williams v. Illinois, 399 U.S. 235, 239 (1970)
("[N]either the antiquity of a practice nor the fact of steadfast
legislative and judicial adherence to it through the centuries insulates it
from constitutional attack"); see also Heller v. Doe, 509 U.S. 312, 326
(1993) ("Ancient lineage of a legal concept does not give it immunity from
attack for lacking a rational basis.").
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. See Lawrence v. Texas, 539 U.S. 558, 577-78 (2003)
("[N]either history nor tradition could save a law prohibiting
miscegenation from constitutional attack") (citation omitted); Nevada
Dep't of Human Res. v. Hibbs, 538 U.S. 721, 733-35 (2003) (finding that
government action based on stereotypes about women's greater suitability or
inclination to assume primary childcare responsibility was unconstitutional).
And, as Justice Scalia has noted in dissent, "`preserving the traditional
institution of marriage' is just a kinder way of describing the State's moral
disapproval of samesex couples." Lawrence, 539 U.S. at 601 (Scalia, J.,
dissenting). While "[p]rivate biases may be outside the reach of the law,
. . . the law cannot, directly or indirectly, give them effect" at the
expense of a disfavored group's constitutional rights. Palmore v. Sidoti, 466
U.S. 429, 433 (1984).
Although the State did not directly present an argument based
on religious freedom, the court notes that its decision does not mandate any
change for religious institutions, which may continue to express their own
moral viewpoints and define their own traditions about marriage. If anything,
the recognition of same-sex marriage expands religious freedom because some
churches that have congregations in Utah desire to perform same-sex wedding
ceremonies but are currently unable to do so. See Brief of Amici Curiae Bishops
et al., at 8-15, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307)
(arguing that the inherent dignity of lesbian and gay individuals informs the
theology of numerous religious beliefs, including the Unitarian Universalist
Church and the United Church of Christ). By recognizing the right to marry a
partner of the same sex, the State allows these groups the freedom to practice
their religious beliefs without mandating that other groups must adopt similar
practices.
For these reasons, the court finds that the State's interest
in preserving its traditional definition of marriage is not sufficient to
survive rational basis review.
C. Summary of Rational Basis Analysis
In its briefing and at oral argument, the State was unable
to articulate a specific connection between its prohibition of same-sex
marriage and any of its stated legitimate interests. At most, the State
asserted: "We just simply don't know." (Hr'g Tr., at 94, 97, Dec. 4,
2013, Dkt. 88.) This argument is not persuasive. 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 the 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." Windsor, 133 S. Ct. at 2694; see also id. at 2710
(Scalia, J., dissenting) (suggesting that the majority's reasoning could be
applied to the state-law context in precisely this way). 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.
The Plaintiffs have presented a number of compelling
arguments demonstrating that the court should be more skeptical of Amendment 3
than of typical legislation. The law differentiates on the basis of sex and
closely resembles the type of law containing discrimination of an unusual
character that the Supreme Court struck down in Romer and Windsor. But even
without applying heightened scrutiny to Amendment 3, the court finds that the
law discriminates on the basis of sexual identity without a rational reason to
do so. Because Amendment 3 fails even rational basis review, the court finds
that Utah's prohibition on same-sex marriage violates the Plaintiffs' right to
equal protection under the law.
VI. Utah's Duty to Recognize a Marriage Validly Performed in
Another State
Plaintiffs Karen Archer and Kate Call contend that their
rights to due process and equal protection are further infringed by the State's
refusal to recognize their marriage that was validly performed in Iowa. The
court's disposition of the other issues in this lawsuit renders this question
moot. Utah's current laws violate the rights of same-sex couples who were
married elsewhere not because they discriminate against a subsection of
same-sex couples in Utah who were validly married in another state, but because
they discriminate against all same-sex couples in Utah.
CONCLUSION
In 1966, attorneys for the State of Virginia made the
following arguments to the Supreme Court in support of Virginia's law
prohibiting interracial marriage: (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)
"[I]ntermarriage constitutes a threat to society"; and (4)
"[U]nder the Constitution the regulation and control of marital and family
relationships are reserved to the States." Brief for Respondents at 47-52,
Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931. 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. Anti-miscegenation laws in Virginia and elsewhere were
designed to, and did, deprive a targeted minority of the full measure of human
dignity and liberty by denying them the freedom to marry the partner of their
choice. Utah's Amendment 3 achieves the same result.
Rather 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. Amendment 3 does not thereby elevate the status of
opposite-sex marriage; it merely demeans the dignity of same-sex 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, not a sign that, by opening its doors to all individuals, it is in
danger of collapse.
The State of Utah has provided no evidence that opposite-sex
marriage will be affected in any way by same-sex marriage. In the absence of
such evidence, the State's unsupported fears and speculations are insufficient
to justify the State's refusal to dignify the family relationships of its gay
and lesbian citizens. Moreover, the Constitution protects the Plaintiffs'
fundamental rights, which include the right to marry and the right to have that
marriage recognized by their government. These rights would be meaningless if
the Constitution did not also prevent the government from interfering with the
intensely personal choices an individual makes when that person decides to make
a solemn commitment to another human being. The Constitution therefore protects
the choice of one's partner for all citizens, regardless of their sexual
identity.
ORDER
The court GRANTS the Plaintiffs' Motion for Summary Judgment
(Dkt. 32) and DENIES the Defendants' Motion for Summary Judgment (Dkt. 33). The
court hereby declares that Amendment 3 is unconstitutional because it denies
the Plaintiffs their rights to due process and equal protection under the
Fourteenth Amendment of the United States Constitution. The court hereby
enjoins the State from enforcing Sections 30-1-2 and 30-1-4.1 of the Utah Code
and Article I, § 29 of the Utah Constitution to the extent these laws prohibit
a person from marrying another person of the same sex.
SO ORDERED.
[1] Unless noted otherwise, the court will refer to
Amendment 3 in this opinion to mean both the Utah constitutional amendment and
the Utah statutory provisions that prohibit same-sex marriage.
[2] The Hawaii Supreme Court remanded the case to the trial
court to determine if the state could show that its marriage statute was
narrowly drawn to further compelling state interests. Baehr, 852 P.2d at 68.
The trial court ruled that the government failed to make this showing. Baehr v.
Miike, No. 91-1394, 1996 WL 694235, at *22 (Haw. Cir. Ct. Dec. 3, 1996). The
trial court's decision was rendered moot after Hawaii passed a constitutional
amendment that granted the Hawaii legislature the ability to reserve marriage
for opposite-sex couples. Recently, the legislature reversed course and
legalized same-sex marriage. Same-sex couples began marrying in Hawaii on
December 2, 2013.
[3] The Vermont legislature complied with this mandate by
creating a new legal status called a "civil union." The legislature
later permitted same-sex marriage through a statute that went into effect on
September 1, 2009.
[4] Six states have legalized same-sex marriage through
court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, New
Mexico); eight states have passed same-sex marriage legislation (Delaware,
Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont);
and three states have legalized same-sex marriage through a popular vote
(Maine, Maryland, Washington). Same-sex marriage is also legal in Washington,
D.C.
[5] As discussed below, Section 3 defined marriage as the
union between a man and a woman for purposes of federal law. The Court did not
consider a challenge to Section 2, which allows states to refuse to recognize
same-sex marriages validly performed in other states. See 28 U.S.C. § 1738C.
[6] The Tenth Amendment makes explicit the division between
federal and state power: "The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people." U.S. Const. amend. X.
[7] In 1948, the California Supreme Court became the first
court in the twentieth century to strike down an anti-miscegenation statute.
Perez v. Sharp, 198 P.2d 17 (Cal. 1948); see also
No comments:
Post a Comment