Bench Memos

Re: Tenth Circuit Ruling Against Utah’s Marriage Laws

Some quick observations on today’s ruling, by a divided Tenth Circuit panel, against Utah’s marriage laws:

1. The majority opinion, written by Clinton appointee Carlos Lucero and joined by Bush 43 appointee Jerome Holmes, subjects Utah’s Amendment 3 to strict scrutiny (the most stringent standard of review). The dissent, by Bush 41 appointee Paul Kelly, applies deferential rational-basis review.

2. I’m not going to try to summarize the 65 pages of the majority opinion. Its general line of argumentation and rhetoric seems (not surprisingly) very similar to that of the district courts that have ruled against marriage. One (perhaps empty) exception: The majority “actively discourage[s]” any reading of its opinion that would “brand those who oppose same-sex marriage as intolerant.”

3. Here is a passage from the opening of Judge Kelly’s strong dissent (some citations omitted):

“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,” at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. See United States v. Windsor, 133 S. Ct. 2675, 2714 (2013) (Alito, J., dissenting). The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender…. 

If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. And given the recent advent of same-gender marriage, Windsor, it is hardly remarkable that a state might codify what was once implicit. 

Judge Kelly concludes with this exhortation:

We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.

Here is a high-level guide to his dissent:

a. The Supreme Court’s summary disposition in Baker v. Nelson (1972) forecloses lower courts from recognizing a right to same-gender marriage. (Consistent with analysis of 2012 First Circuit ruling against DOMA.)  (Pp. 2-6.)

b. Tenth Circuit precedent requires rational-basis review of equal-protection claim of alleged sexual-orientation discrimination. (Pp. 3-8.)

c. There is no fundamental right to same-gender marriage (pp. 8-13):

First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries…. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.

(P. 9 (citations omitted).)

d. Utah’s marriage laws easily satisfy rational-basis review. (Pp. 13-21.)

4. This issue is obviously headed for the Supreme Court. The lower-court rulings are mere preludes. That said, the fact that the panel divided, and that so much turns on what the appropriate standard of review is, illustrates that the Court’s ultimate resolution of this issue is far from the fait accompli that the slew of district-court rulings might be mistaken to suggest. (Which isn’t to pretend that I’m optimistic about how this Supreme Court will rule.)

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