“It is So Ordered” Marriage Equality Returns to Utah (sort of)

On June 25, 2014, the Tenth Circuit Court ruled that Utah’s Amendment 3, the constitutional ban on marriage equality, violated the Fourteenth Amendment and Due Process of LGBT citizens. This is a landmark case, the first since the Supreme Court ruled last year on the DOMA and Prop 8 cases. This ruling specifically forbids states from violating the US Constitution and demeaning citizens. (What a concept!) Of course, Utah Attorney General Sean Reyes and Governor Gary Herbert have said they will weigh their options and are likely to appeal. What they could do is stop wasting money and not appeal but that’s an unlikely outcome. 


At the Celebration Rally in City Creek Park

There is something magical about the month of June. It is Pride Month for a reason and the list of things to be proud of continues to grow.


The Mormon Church Office Building looms large in the background.

On June 22, 1969 Judy Garland died.

Stonewall Inn Riots began June 27-28, 1969, considered to be the beginning of the modern Gay Rights movement. 

June 26, 2003 all Sodomy Laws ruled unconstitutional,

June 26, 2013 DOMA and Prop 8 overturned, and

June 25, 2014 the Tenth Court Ruling that marriage equality is legal in Utah. 

The ruling from the court is essential reading for anyone involved in the marriage equality fight. Two judges eviscerated every argument put forth by the State of Utah. Take the time to read the PDF.

These are some of the highlights:

There are 72 mentions of the word “children” in this ruling, as children featured prominently in the states argument to ban marriage equality.

With my friends, including Derek and Moudi, the named plaintiffs in the case, and Megan and Candice, holding their daughter, Quinn.

With my friends, including Derek and Moudi, the named plaintiffs in the case, and Megan and Candice, holding their daughter Quinn.

“Children of same-sex couples may lack a biological connection to at least one parent, but “biological relationships are not [the] exclusive determina[nt] of the existence of a family. These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers. The only explicit reference to reproduction in Utah’s marriage law is a provision that allows first cousins to marry if “both parties are 65 years of age or older; or . . . if both parties are 55 years of age or older, upon a finding by the district court . . . that either party is unable to reproduce.” Utah Code § 30-1-1(2). This statute thus extends marriage rights to certain couples based on a showing of inability to reproduce.”

The Tenth Circuit Court saw right through the homophobia in Amendment 3 writing,

“But a prohibition on same-sex marriage is not narrowly tailored toward the goal of encouraging gendered parenting styles. The state does not restrict the right to marry or its recognition of marriage based on compliance with any set of parenting roles, or even parenting quality. Instead, every same-sex couple, regardless of parenting style, is barred from marriage and every opposite-sex couple, irrespective of parenting style, is permitted to marry. Amendment 3 cannot be justified by the impermissibly overbroad assumption that any opposite-sex couple is preferable to any same-sex couple. Appellants have retreated from any categorical conclusions regarding the quality of same-sex parenting. Although they presented to the district court voluminous scholarship addressing various parenting issues, they now take the position that the social science is unsettled. See Rule 28(j) Letter at 2, No. 13-4178 (10th Cir., filed Apr. 9, 2014) (acknowledging that appellants’ main scientific authority on this issue “cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements”). At oral argument, counsel for appellants stated that “the bottom line” regarding the consequences of same-sex parenting “is that the science is inconclusive.” Although we assume that the State’s asserted interest in biological parenting is compelling, this assumption does not require us to accept appellants’ related arguments on faith. We cannot embrace the contention that children raised by opposite-sex parents fare better than children raised by same-sex parents—to the extent appellants continue to press it—in light of their representations to this court. Appellants’ only reasoning in this regard is that there might be advantages in one parenting arrangement that are lacking in the other. On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day…

Instead of explaining why same-sex marriage qua same-sex marriage is undesirable, each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples. Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative. But the state permits many other types of non-procreative couples to wed…Appellants liken the recognition of same-sex marriage to another change in marriage law, arguing that there is “a compelling parallel between the unintended consequences of no-fault divorce, which harmed children by weakening marriage and fatherhood, and the harms that will likely result” from permitting same-sex couples to marry. We cannot accept appellants’ claim that allowing same-sex couples to marry is analogous to a law that permits married couples to divorce. The former causes an increase in the number of married individuals, whereas the latter decreases the number of marriages in a state.” 

The state argued that same-sex marriage would encourage straight people to NOT get married or have kids. That argument made zero sense when they said it and the Tenth Circuit Court slapped them down for it saying,

“We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child. We agree with the district court that such decisions, among “the most intimate and personal . . . a person may make in a lifetime, choices central to personal dignity and autonomy,” Casey, 505 U.S. at 851, are unrelated to the government’s treatment of same-sex marriage. To the extent that they are related, the relation exists because the State of Utah has chosen to burden the ability of one class of citizens to make such intimate and personal choices.” 

The court specifically addressed the absurd fear shrieked by the religious right that “churches will now be FORCED to marry those icky queers!” by saying,

“We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he 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.”). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit.”

In other words, churches can continue, as they have always been allowed to do, to believe and do what they will. They just can not impose their religious beliefs onto civil society. Even in Utah.

And finally these two beautiful statements about freedom, liberty, and the pursuit of happiness,

“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

“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. For the reasons stated in this opinion, we affirm. … [Under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.”

A stay is still in effect in Utah but could be lifted. The court stated that,

“If no petition for certiorari is filed, we would lift the stay and issue our mandate when the deadline for filing the petition lapses. See Perry v. Brown, 681 F.3d 1065, 1066-67 (9th Cir. 2012) (per curiam). If a petition for certiorari is filed and denied, we would lift the stay and issue the mandate. See Stafford v. Ward, 60 F.3d 668, 671 (10th Cir. 1995). And if a petition for certiorari is filed and granted, the stay will remain in effect until the Supreme Court resolves the dispute. See id. at 670″

It is so ordered.

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1 Comment
  • Armando Bravo
    June 27, 2014

    Yes, Seth. The arguments of the judges have no fault, nor error. They got the real position of the State and made their judgment. Be happy and cheers for the couples of husbands and the couples of wives.

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