Brett Turner, Senior Attorney, National Legal Research Group
A panel opinion has been released in Kitchen v. Herbert, the first Circuit Court case to decide the same-sex marriage issue after Windsor. The opinion holds that Utah's constitutional and statutory provisions barring same-sex marriage are an unconstitutional denial of due process.
The majority reasoned that the right to marriage is fundamental and exists without any reference to any characteristics of the parties whose marriage is being regulated. In support, it cited case law holding that the right to marry applies to interracial couples, delinquent child support obligors, and prison inmates. From these cases, it extracted a general principle that the right to marriage is inherently and necessarily universal. "We cannot conclude that the fundamental liberty interest in this case is limited to the right to marry a person of the opposite sex. As we have discussed, the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it." Slip op. at 35-36.
The majority opinion lacks some of the eloquent rhetoric on the policy reasons for permitting same-sex marriage that has marked some of the previous district court opinions. The key passage is rather dry and technical, concluding that because the right to marry has been extended to such a wide variety of opposite-sex couples, it is universal and must therefore apply to same-sex couples.
The court expressly rejected the argument that the validity of same-sex marriage should be decided by the electoral process.
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." W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
Id. at 62.
The dissenting opinion is the first federal opinion to argue that there should be no federal right to same-sex marriage. It stressed that the future of same sex marriage should be decided by elections, not by judges. "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." Dissent at 2. The opinion identifies three reasons why the right to marriage does not extend to same-sex couples:
First, same‑gender marriage is a very recent phenomenon; for centuries "marriage" has been universally understood to require two persons of opposite gender. Windsor, 133 S. Ct. at 2689. 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. Courts do not decide what is not before them. That the Court did not refer to a "right to interracial marriage," or a "right to inmate marriage" cannot obscure what was decided; the Supreme Court announced a right with objective meaning and contours. 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.
Id. at 9. The dissent then argued that provisions barring same-sex marriage have a rational basis:
The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State's position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe.
Id. at 20. This argument is essentially statistical: A position argued intensely by large numbers of Americans must necessarily be sufficiently rational that a state electorate or legislature is permitted to accept it.
Of these three reasons identified by the dissent in support of the position that the right to marriage is not fundamental, the third is the strongest. The federal courts are not free to create new fundamental rights simply because federal judges think they are good policy. In order for a right to be fundamental, it must generally have strong support in history and tradition.
There are circumstances in which history and tradition have been less important—many early race discrimination decisions were decided when much of the South was deeply racist—but even those decisions were supported by a strong public consensus, at least abstractly, that race discrimination was wrong.
Same sex marriage lacks a strong supporting consensus in state law. As this blog has previously noted, 17 states have chosen to recognize same-sex marriage as a matter of state law. That means that 33 states do not recognize same-sex marriage. By contrast, when the Supreme Court decided Loving v. Virginia, 388 U.S. 1 (1967), 35 states allowed interracial marriage and only 15 states did not.
Likewise, in Lawrence v. Texas, 539 U.S. 558 (2003), the court held that history and tradition alone could not save criminal sodomy statutes—but those states were opposed by a majority of Americans and had already been repealed in many states. "By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings."
If the fundamental right to marriage extends to same-sex couples, therefore, the basis must be a strong supporting consensus in public opinion. This is where the dissent is on the least solid ground. Since Windsor was decided, federal judges across the country have been finding a federal right to same-sex marriage. Public protest, on the whole, has been limited. Polls show that a steadily growing majority of Americans accept the decisions and agree that a right to same-sex marriage should exist. In a recent Washington Post poll, Americans supported same-sex marriage by a 59-34 margin and supported the existence of a federal right to same-sex marriage by a 50-41 margin. A recent Gallup poll showed Americans supporting same sex marriage by a 55-42 margin.
This blog has previously argued that support for same-sex marriage has not reached the level necessary to justify recognition as a fundamental right. As a matter of state law, this is clearly so. But as a matter of public opinion, the question is much closer. The fundamental right to marriage was extended to interracial couples in Loving, even though 30% of the states (15 out of 30) disagreed. Lawrence struck down sodomy laws that were present in 28% of the states (14 out of 50).
Public opposition to same-sex marriage is steadily shrinking toward that 28-30% level. It is not quite there yet—but the downward trend is very steady. The trend is especially pronounced among adults under 30, 78% of whom supported same-sex marriage in the above-cited Gallup poll.
The author continues to believe that Americans should generally resolve their disputes in elections and that federal judges should not invent fundamental rights merely because the judges believe that they would be good policy. But when support for a right passes the 65-70% level, courts have traditionally been willing to call the right fundamental. Support for same-sex marriage is getting close to that level—and it is well past that level among younger Americans.
The Kitchen majority stayed its ruling in anticipation of future appeals, either to the United States Supreme Court or to the Tenth Circuit en banc. The appellants are likely to pursue one of those options.
