Finally, The Courts Agree: Gay Marriage is a Fundamental Right
Last week the 10th Circuit Appeals Court issued a landmark ruling overturning Utah’s ban on same-sex marriage that puts us on track for a final marriage equality showdown before the Supreme Court. Here’s what you need to know about why this ruling is so very special.
The Denver based appeals court decided in a 2-1 decision to uphold U.S. District Court Judge Robert J. Shelby’s December 2013 ruling that overturned Utah’s Amendment 3, a constitutional amendment enacted by voters to prohibit recognition of same-sex marriages within the state. Even on its own that’s a big deal. It’s one of the only times that an appellate court has ruled against a same-sex marriage ban — but it’s the precise wording the court chose which really matters here.
May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry? Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.
That’s right, the court just recognized a fundamental right to same-sex marriage.
In its ruling the 10th Circuit cites a number of important cases. Of course there’s Loving v. Virginia which ended interracial marriage bans throughout the United States, but the opinion also takes on other arguments often offered by state administration when defending their same-sex marriage bans. For instance, the justices devote particular attention to the idea that same-sex marriage is substantially different because it lacks a procreative element. As there is precedent in the 10th Circuit for tying marriage and procreation, the justices were forced to weigh that issue. Ultimately, they found it unconvincing for a number of reasons, but most pleasing is the fact that the Court turned the matter on its head: that there must also exist a fundamental right not to procreate and therefore using that as a standard for a valid marriage is inconsistent.
However, it is the Windsor decision that seems to play the main role here. Just over a year ago on June 26, the Supreme Court of the United States found in Windsor v. United States that the federal ban on recognizing same-sex marriages (DOMA Section 3) was unconstitutional. In that opinion, which involved octogenarian Edith Windsor who faced an exorbitantly high tax on her deceased spouse’s estate for no other reason than that the federal government wouldn’t recognize her marriage, the Supreme Court did not touch the larger question of whether a fundamental right to same-sex marriage exists, instead finding that moral disapproval itself cannot be used to discriminate against same-sex couples who are a disfavored class.
This ruling, while heavily implying that all same-sex marriage bans are discriminatory, did not state whether there exists a fundamental right to same-sex marriage that naturally comes from the Courts’ previous determinations that as a matter of 14th Amendment rights, there is a right to heterosexual marriage.
Establishing that there is such a right has always been the key end-goal for marriage equality advocates because a ruling like this would serve to strike every same-sex marriage ban. We might argue that this has already happened with Windsor because, since that ruling, and as we’ve seen above, no federal court has found that same-sex marriage bans pass the constitutional test. However, states are still defending those bans on grounds of state autonomy–that states can define marriage as they see fit. That’s why recognition of marriage equality as a fundamental constitutional right is so important and why the 10th Circuit’s framing here is so important.
Utah’s administration has announced that it will appeal. Now, they could ask for consideration by the full 10th Circuit but analysts believe that because of how comprehensive this ruling is, it is unlikely to make a difference. That means this decision will likely go before the Supreme Court next year. It will be one among many, but the 10th Circuit’s particular attention to the fundamental right to marry as a matter of private conduct and expression means that the Supreme Court, unless it seeks to dismiss on a technicality, probably won’t be able to duck that question.
For that reason, analysts are calling the 10th Circuit’s decision incredibly important.
“This is the most significant victory in the history of the gay rights movement,” Clifford Rosky, a law professor at the University of Utah, is quoted as saying. “A federal appeals court has recognized that same-sex couples enjoy the same freedoms as all Americans — the freedoms to marry, establish a family and raise children together. This is a victory not only for the 1,300 same-sex couples who are married in Utah, but for all gay Americans.”
In the meantime, the decision remains stayed so same-sex couples in Utah cannot yet marry. There is, however, a broader effect. The 10th Circuit covers a number of states where same-sex marriage bans are being challenged in the district courts but where religious conservatives are mounting every defense they have. So the 10th Circuit’s decision on the Utah amendment strikes not only Utah’s ban but undercuts defenses in states like Kansas, Oklahoma and Wyoming too. As such, this decision appears to accelerate us toward the final showdown at the Supreme Court — which, for many, is a moment that can’t come soon enough.
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