New Ruling on Utah Gay Marriage Inches Laws Closer to Another Supreme Court Review

Credit: lwaldal / photo on flickr

In a 2-1 decision today, a federal appeals court in Denver upheld a ruling from 2013 that Utah's ban on same-sex marriage recognition is unconstitutional.

If Utah chooses to appeal this latest ruling (which the judge has put on hold for the state to consider its options), it will be up to the Supreme Court to decide if it wants to hear it.

In the majority decision, Judge Carlos Lucero writes, "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." Read the decision here.

In the dissent, Judge Paul J. Kelly said the court was overstepping its authority: We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment."

Assuming Utah continues its appeal, the Supreme Court would have to decide to take the case up and consider whether setting a legal precedent that gay marriage recognition is or is not a right. If they decline to take up the case, technically they are avoiding the precedent, but given that federal judges have been striking down gay marriage bans wherever they've been challenged (less than an hour before this announcement, a judge struck down Indiana's ban, and the state has already begun handing out marriage licenses), gay marriage recognition is likely to become the law of the land anyway.

UPDATE: Utah's attorney general has said he will be asking the Supreme Court to take the case.

Comments

[wareagle]

oh, good. More culture warz. Because we can never get enough of stories about this sort of thing.

[Notorious G.K.C.]

Dope is a culture war issue, too.

[Zeb]

I think that depends. It certainly can be. There are plenty of people with no cultural attachment to any kind of dope who nevertheless object to prohibition on principle.

Anyway, not all "culture war" issues are the same. Some have a more clear libertarian or otherwise principled answer than others. I don't think that gay marriage is one that does (though I'll still argue about it given sufficient provocation) as having no legal definition of marriage at all would be a perfectly acceptable solution.

[John]

How about your fight your culture wars in the political realm instead of raping the Constitution?

[Tony]

How about you act like a man and realize when you've lost?

[Notorious G.K.C.]

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

Where's the fun in *that?*

Anyway, look at those poofy outfits the Founding Fathers wore. They were obviously hiding gay marriage in the Constitution's penumbras somewhere.

"I will look, your Honor, and endeavor to find a precedent, if you require it; though it would seem to be a pity that the Court should lose the honor of being the first to establish so just a rule." - Rufus Choate

[Hugh Akston]

There's nothing penumbral about removing gender requirements from civil licensing laws. It's a pretty open-and-shut equal protection argument.

[John]

So the fact that homosexuality was a crime in every state when the Amendment was passed doesn't mean that sexual orientation was not intended to be a protected class under the 14th Amendment?

There is nothing open and shut about it at all. Homosexuality was a crime for most of American history. And there was no such thing as gay marriage until recently. Only someone who just doesn't give a fuck what the document means and just wants their pony by any means necessary could think this is an open and shut case.

And moreover, if the courts were acting under any kind of principle beyond the fact that judges and elites like gays, they would be striking down polygamy laws as well. But they are not doing that because people like gays and hate the polygamists. This entire thing is nothing but an exercise in "the Constitution means whatever the fuck the judges say it means" and nothing else. You think it is great because you like gay marriage and are okay with taking half a loaf and telling the polygamists to go fuck themselves. I am thinking you are not going to like the Constitution meaning whatever judges and the political elite think it does going forward.

[Hugh Akston]

When I refer to 'equal protection' I am alluding to the equal protection clause of the 14th Amendment to the US Constitution.

If states or other political entities are going to have laws that allow them to issue marriage licenses, they should do so without regard to the sex/gender of the licensees. Similarly, if they are going to ban the practice of homosexuality, they should enforce it against men as well as women. That's what 'equal protection' means.

I'm arguing that state laws ought to conform to a clearly stated constitutional standard. You're arguing that treating people equally creates a "protected class." So which one of us just doesn't give a fuck about what the document means?

[John]

No Hugh, you are just begging the question. You are referring to the 14th Amendment. And equal protection doesn't mean that the states can't discriminate. It means they can't discriminate based on a protected class. The whole issue is whether and why being gay is a protected class and say wanting a second wife or to marry your cousin isn't.

You are not arguing anything Hugh other than you want your damn pony and you want it now.

[Hugh Akston]

Well I may not be a fancy big city lawyer, but in my copy of the Constitution, the 14th Amendment states in part:

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.

Perhaps you'd be kind enough to point out where it says the person must be a protected class for that to apply.

[R C Dean]

The states are still allowed to discriminate on issuing marriage licenses based on age, consanguinuity, and marital status. Do those restrictions violate the Equal Protection Clause? If not, why not?

Gay marriage as an EP issue is an exercise in question-begging. Its not an EP issue if marriage means "man and woman". The issue is, who gets to say what "marriage" means for licensing purposes? The courts, or the legislatures?

The courts are assuming that marriage really means "any two adults". Naturally, that's not the historical definition or the definition on the books. So the courts are saying that they are redefining marriage to mean "any two adults". Where they got that authority is a mystery to me.

[Tony]

The courts are consistently seeing an equal protection violation in gay marriage bans. It's neither complicated, scandalous, nor something to be angry about.

By now if you haven't caught on then it can only be the case that you have a severe case of Jesus interfering with normal mental function.

[Mark22]

"The courts are assuming that marriage really means"

You're trying to impose religion through the subterfuge of using a religious word to describe a law and then complaining that that law doesn't conform to your religion. The solution is not to make the law conform to the meaning of your religious terminology, it's to eliminate religious terminology from the law: let's replace the term "marriage" with the term "civil union" in all laws.

But no matter what you call it, legal "marriage" is a government benefit program, and government benefit programs need to be available to everybody without prejudice or preference, not just to those who a religious majority deems worthy.

[gary47290]

Bans on underage marriage are a slam dunk. Marriage is a contract, under 18s do not have the legal capacity to enter a contract.

Bans on consanguinity (or in simple terms: incest) are imminently defensible. Marriage establishes kinship. Like the old joke, if a couple in {pick your favorite redneck state) get divorced, are they still brother and sister?

The incest ban protects society from the risks to family stability in the event of an incest divorce; inbreeding (just look at European royalty); and the family redundancy of marrying immediate family.

The test for marital status makes sense when marriage means two. If you want to argue for polygamy / polyandry, beat you brains out.

[Tony]

Put John down for the pro-polygamy movement. I'm sure there's a lawyer to take your case. Just leave the gays out of it.

[Mark22]

Blasphemy was a crime at the time as well; that doesn't mean it's OK for any US government body to impose Christianity. Anti-miscegenation laws were on the books until well into the 20th century, so should they not have been abolished?

Stripped of all the religious and cultural b.s., marriage is a limited set of government benefits that you can claim for one other adult. Equal protection demands that the state can't impose arbitrary limits on who that other person is, but it doesn't require extending those benefits to more than one person.

[Hugh Akston]

Moreover, there's no compelling Constitutional case to be made in favor of laws whose enforcement are predicated on what kind of junk you keep in your pants.

[Carl ?s his privilege]

Irish and Auric will like current speaker at Google I/O.

This is why there are no redhead women libertarians...

[Auric Demonocles]

If I could find one, I'd be willing to help pump a bunch of new ones for everyone else to enjoy in 20 years.

Also: dang, doesn't seem to be on the stream anymore.

[Carl ?s his privilege]

She's a 2:46

[Carl ?s his privilege]

at

[Auric Demonocles]

Oh. I see.

Found it. Not bad, though I noticed the ring immediately. I guess I'm getting old.

[Idle Hands]

this is gay.

[Auric Demonocles]

The party I went to Friday night was literally the gayest thing I've ever seen.

For straight people there was me, the friend I went with, the host's brother, and a Brazilian girl that worked with the host's brother. The other 20 people were all gay men.

(And no, I didn't get a date with that chick. I did try though)

[Auric Demonocles]

Before I got distracted by redheaded women and gays (and apparently squirrels now too), I meant to say:

based solely upon the sex of the persons in the marriage union

At least they're using a valid argument this time. There's no discrimination based on sexuality in these type of laws. However, there is a sex-based one, since women get stuck marrying men, when clearly women are hotter.

[gary47290]

The opponents of marriage equality have yet to explain why they have any right to interfere with the rights of same-sex couples to marry. There is no harm to the body politic or society, and much harm to the couples they bar from marriage.

A constitution of limited and enumerated powers denies the Federal and State governments any authority here.