Two weeks ago, in Kitchen v. Herbert, the 10th Circuit Court of Appeals struck down Utah’s constitutional ban on same-sex couples’ ability to marry. The court held 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.”
This case is a major victory for same-sex couples. It is also likely to go to the Supreme Court on appeal. The case hinged on two key points: the federal courts authority to dictate state law on this issue and whether there is a fundamental right for same-sex couples to marry.
The first issue basically boils down to balancing the nation’s federalist structure and the rights of a minority class. Courts don’t want to hinder the rights of states, but they also must protect the freedoms of minority classes. As the court explained, exercising fundamental rights are not something to be put up to a vote by one’s peers. This is so the majority may not take away constitutional freedoms from minority classes.
We saw this with the civil rights movements of the 20th century. When the ACLU challenged bans on interracial marriage in the pivotal case Loving v. Virginia, a mere 20% of the population approved of such marriages. Now, a majority of Americans actually support allowing same-sex couples to marry (for example 61% of Coloradans approve of same-sex marriage), yet only 19 states and the District of Columbia allow same-sex couples the freedom to marry. So it would seem that even the majority does not support taking away the fundamental right to marry.
Utah’s Attorney General argued that the freedom to marry is not a fundamental right for same-sex couples and that same-sex marriages are not conducive to the “family structure”. First, Utah contended that same-sex marriage cannot be a fundamental right because it has not been deeply rooted in our nation and its history. According to Utah, “many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” The court disagreed, using the same logic as Loving. They found that marriage is a basic civil right of man. Not of a man and a woman, but of man in the colloquial sense. Marriage is a right for all men and women, regardless if they choose to marry someone of the same sex. Marriage has had a tradition of being between a man and a woman. Just because there has been a tradition of discriminating against a class of people that doesn't make it right. “It is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”
Second, Utah argued that same-sex couples should be denied the freedom to marry because they are not naturally procreative and can’t reinforce the childrearing family structure. This just doesn't make sense. Allowing individuals to marry who they choose and to create a loving family of their choice can only reinforce the childrearing family structure. Recent studies have alluded that children raised by same-sex couples are happier and healthier than their peers raised by heterosexual couples, not the other way around. By denying same-sex couples the ability to marry, children that are already being raised by these couples are humiliated and increased hardship is added to their lives by making it harder for them to understand their own family structure. So, the exact opposite of what Utah argues.
Further, just because same-sex couples can’t procreate, in the classical sense, that is no reason to deny them a fundamental freedom. Same-sex couples may simply not choose to have children, which is a right of any married couple. Or, if a same-sex couple so chooses, there are options for them to conceive, such as surrogacy. The other reason this argument doesn’t make sense is that other non-procreative couples are permitted to wed by the state. Parents who adopt and don’t have babies of their own are given full rights and are allowed to marry. Are we to strip the right to marry from all who are sterile? The 10th Circuit doesn't think so, and neither does it think the freedom to marry should be denied to same-sex couples.
With this groundbreaking decision in the 10th Circuit, ripples are already starting to be felt in 10th Circuit states. In Wyoming, a motion for summary judgment citing this decision has already been filed for the Courage v. Wyoming case. Three county clerks in Colorado have recently announced that they will issue marriage licenses to same-sex couples even though the ruling in Kitchen has been stayed pending a petition to the Supreme Court. Just last Wednesday, Utah announced it is appealing directly to the United States Supreme Court and that Utah’s ban on same-sex marriage will be presumed constitutional until struck down by the highest court. With these developments, now all we can do is wait and see if the Supreme Court takes the case and finally resolves this issue for the country. We wait to see if marriage for all committed couples is finally allowed throughout the country.
ACLU of Wyoming Legal Extern
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