Home stretch

Marriage equality may have rounded the last turn today in its race through the US legal system.

Photo from Flickr Creative Commons by Jamison Wieser
Photo from Flickr Creative Commons by Jamison Wieser

When the 10th Circuit Court of Appeals set up the question in Kitchen v. Herbert this way, there was no possible outcome other than a strong decision affirming the lower court, in favor of a right to marry for same-sex couples:

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?

Sure enough, the decision is a thorough trashing of the state of Utah’s defense of its same-sex marriage ban:

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.

This is a federal appeals court — higher than the federal courts that have been overturning state laws left and right — and the first to rule that same-sex marriage bans are unconstitutional. After this, it’s on to the Supreme Court. Here are some more highlights from the decision.

The decision states that the Supreme Court’s Windsor decision (which I discussed here) is “not directly controlling, but adds that “the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored.” That is teeing up the Supreme Court’s future decision for Windsor author Justice Kennedy, and confirming the conclusions of many that Scalia was right in his Windsor dissent:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

The decision today also explains that extending the right to marry to same-sex couples does not constitute creating a new right, but merely recognizing that the prohibition against arbitrary denial of rights to marriage — which has been expressed in broad terms in the past — applies to same-sex couples as well. For example, the Casey decision explains about Loving v. Virginia (which overturned interracial marriage bans):

[m]arriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.

That is, Loving and other decisions described the “freedom of choice to marry” broadly enough that it can now be extended without a finding that the Supreme Court intended to extend it to same-sex couples: “the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it.” And they quote from a dissent in a prior case, Hernandez v. Robles: “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

They also address Utah’s specious claim that marriage rights are really about the right to procreation by citing precedents that protect the right not to procreate (e.g., the Eisenstadt and Griswold cases on contraception), and the right of parents to raise their children (not just bear them), as in the Carey decision and others on parenting rights, and decisions protecting the rights of adoptive parents.

On the idea that Utah should be able to ban same-sex marriage because it has an interest in furthering the idea of procreation within marriage (which I discussed here), the decision is dismissive:

Among the myriad types of non-procreative couples, only those Utahns who seek to marry a partner of the same sex are categorically excluded from the institution of marriage. Only same-sex couples, appellants claim, need to be excluded to further the state’s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages. The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.

Interesting here the judges are not arguing about a couple’s right to marry, but rather about an individual’s right to marry someone of the same sex. That’s a harder right to deny.

And on the whole idea that gay marriage threatens straight marriage:

We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.

On the comparison to no-fault divorce, which supposedly undermined marriage generally, an extended riff on hypocrisy:

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. … Setting aside the implausibility of the comparison, we observe that Utah has adopted precisely the no-fault divorce regime that appellants decry in their briefing. … Through its no-fault divorce statute, Utah allows a spouse—the bedrock component of the marital unit—to leave his family whenever he wants and for whatever reason moves him. It is difficult to imagine how the State’s refusal to recognize same-sex marriage undercuts in any meaningful way a state message of support for marital constancy given its adoption of a divorce policy that conveys a message of indifference to marital longevity.

Further, on the idea, so revoltingly disgorged by Hawkins and Carroll in the Utah case (as I discussed here), that gay marriage would make straight men love their children less:

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.

And finally, in the category of burying the Regnerus-Wilcox agenda to support with social science the bans on same-sex marriage in the name of children’s wellbeing (here’s the whole history):

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. Appellants’ tepid defense of their parenting theory further highlights the looseness of the fit between the State’s chosen means and appellants’ asserted end.

I hope this means Regnerus and his ilk have cashed their last expert-witness check in this cause.

For us non-legal types, the writing judges do when they’re defending fundamental rights is surely their most compelling (and in this genre I highly recommend Judge Walker’s 2010 decision on California’s Prop 8). Overall, it’s an eloquent decision, and worth reading.

But, getting ahead of ourselves a little, it’s also worth pointing out that the 10th Circuit decision contributes to the de-radicalizing of the marriage rights movement with this quip:

Plaintiffs seek to enter into legally recognized marriages, with all the concomitant rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it.

Right! Wait… what?


5 thoughts on “Home stretch

  1. Radical is in the eye of the beholder…anyway, isn’t it a bit essentialist to assume that sub-alterns, sexual or otherwise, share any common political goals, except those arising out of their subordination? As that subordination is reduced, assimilation is pretty much inevitable. Michael Warner, Judith Butler, Eve Sedgwick, Michael Halperin, Leo Bersani, etc. may hold some currency in the academy but I doubt the vast majority of LGBT people have ever heard of them, much less agree with them. Queer critiques of marriage are interesting but quite elitist and removed from reality. All the rants against assimilation reminds me of the worst of marxist false consciousness – those plebs don’t know whats good for them, etc.

    Otherwise, good post…The dissent was weak sauce – he basically just cut and paste from the state’s brief.


    1. I wouldn’t rant against assimilationism, but I think it’s good to have that a place for that conversation. Anyway, I thought it was interesting they went out of their way to say that.


  2. When you read this next part remember the context. Detroit Michigan Federal Judge Friedman had a trial in Michigan where Regnerus testified and was subject to cross examination. Judge Friedman wrote in his court decision that Regnerus is “fringe” and rejected by the academy of scholars in his field. This happened about a week before the oral arguments Appeals Court hearing in the Utah case. At 5:30pm the day before oral argument at the 10th Circuit in Denver, Utah had an “oh shit ” moment as they had basically built their entire case around the Regnerus research and now a Federal Judge in Michigan called that research bullshit. At 5:30pm the day they were due in Applet Court, the State sent a letter to the 3 Judge Appeals Panel and basically said, “Please ignore everything we claimed in the last trial under Regnerus.” at 5:30pm the day before they were due in court they sent the Court that letter.

    This is what the 3 Judge Appeals panel is talking about below.
    Please keep all that in mind as you read this part of the 10th Circuits decision, (Stars *** Added for emphasis)

    ” 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. See Wisconsin v. Yoder, 406 U.S. 205, 224 (1972) (striking down -state action on strict scrutiny where the argument for the interest was “highly speculative” and had “no specific evidence” to support it). ***Appellants’ tepid defense of their parenting theory further highlights the looseness of the fit between the State’s chosen means and appellants’ asserted end.***

    —“Although they presented to the district court voluminous scholarship addressing various parenting issues,” —
    The *District Court* is the Lower Court Federal Judge who first heard the case. The State HAD presented “voluminous scholarship” on gay parenting primarily based on Regnerus. The State really had built it’s case on Regnerus. I am deeply indebted to every one who helped on that Michigan Federal Court case, Dr. Cohen’s Blog was used in Court, and of course the scholarship and testimony of Dr. Michael Rosenfeld, at Stanford and Dr. Gary Gates at the Williams Institute. The fruits of that Michigan Trial were delivered in Utah and WILL be delivered to SCOTUS.


  3. I noticed a new tactic. It used to be that all the Anti Gay Social Scientists would get together in one Amicus brief. I don’t know if they are trying to fan out an look like there’s a bigger controversy or what, but now every person is represented by the same lawyer and now they are filing separate amicus briefs.
    Eggebeen, Byron Johnson, Alan Hawkinks, Mark Regnerus, Catherine Pakuluk, Joseph Price, Doug Allen, but interesting, no Loren Marks.

    There is something, I can’t put my finger on, on Dr. Loren Marks. I keep my eye on most of these people and I just have the general impression that Loren Marks is not the culture war warrior he used to be. Maybe I am wrong, but I sense a change and I can’t quite put my finger on it. His deposition and testimony was waaaay different in attitude than Regnerus, Price & Allen. I wonder if Dr. Marks has become concerned about his professional reputation or something?


  4. Looking good. Nice update.

    Maybe I haven’t read enough to know why we’d want to keep marriage equality framed as a radical proposition, but I know a number of married gays who have self consciously shot for very highi-status/mainstream lifestyles and might disagree. Do we know what the distribution of people who want to assimilate and those who want to maintain a radical status looks like?

    I think “assimilation” doesn’t capture what’s happening here, because so much of the difference of gay/queer/etc. marriages are retained even when it’s not radical anymore. Ozzy Osborne is mainstream now, but I think that’s only because the space that is the mainstream has been expanded to include more variety like him.


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