After 24 hours of reflection, the Tenth Circuit's opinion in Kitchen v. Herbert is looking weaker.
The foundational premise of the majority opinion is that the fundamental right to marriage extends to same-sex couples. This was the critical point of difference with the dissent, which argued that the fundamental right of marriage should not be so extended.
Why, then, did the majority hold that the right to marriage was fundamental? The court's reasoning was as follows:
1. In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that the fundamental right to marriage extends to interracial couples.
2. In Zablocki v. Redhail, 434 U.S. 374, 384 (1978), the Supreme Court held that the fundamental right to marriage extends to delinquent child support obligors.
3. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that the fundamental rights to marriage extends to prison inmates.
4. Because "the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it," Kitchen slip. op. at 35-36, the fundamental right of marriage is unconditional and extends to everyone.
Unfortunately, the above reasoning is clearly wrong. If the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry his or her brother or sister. But no court has ever held, and few commentators have ever argued, that there is a fundamental right to commit incest.
Likewise, if the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry someone who is already married to someone else. But no court has ever held, and almost no commentators have ever argued, that there is a fundamental right to commit bigamy.
It is true that the Supreme Court has rarely found that the right to marriage is qualified. But it a fundamental fallacy to assume that the universe of cases coming before the appellate courts is the same as the total universe of cases. Appellate courts hear only a very small portion of the cases heard in the trial courts, and the trial courts themselves hear only a very small portion of the total cases filed. Only the closest cases are heard on appeal.
One therefore cannot assume that the fundamental right to marry is unqualified merely because the Supreme Court has rarely found a qualification. It is very possible, and this instance highly likely, that the qualifications are so obvious that no one has been willing to bear the expense of arguing against them at the Supreme Court level. Surely, if the issue were to come before the Supreme Court, the Court would recognize that there is no fundamental right to commit incest or bigamy.
The primary reasoning process by which the Kitchen court found infringement of the fundamental right to marry is therefore deeply flawed. The fundamental right to marry is not "independent of the persons exercising it." Id. at 36. At a minimum, it does not apply in cases of incest or bigamy. If the fundamental right to marriage is limited in some ways, it can be limited in other ways.
The Kitchen majority should not have held that the fundamental right to marriage extends unconditionally to everyone. It should have recognized that the fundamental right to marriage is limited in various ways, and have focused upon determining whether a restriction based upon the sex of the parties is one such way.
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The flaws in the reasoning of Kitchen do not mean, of course, that the result reached was wrong. The court convincingly demolished Utah's argument that marriage is all about procreation and not about love. But procreation has always been the weakest part of the argument against a federal right to same-sex marriage.
The strongest part of the argument against a federal right to same-sex marriage is the position taken squarely by the dissent: Judges cannot create a fundamental right under the Due Process Clause merely because they believe it to be good policy. In order to become fundamental, a right must have a strong basis of support from factors other than the judiciary's own policy preferences. The dissent's strongest point against the majority was that the majority identified few sources of support, other than the policy preferences of itself and other judges, for a landmark extension of the fundamental right to marriage.
It is difficult to define exactly what sort of support a right needs to become fundamental. The dissent recognized that "history and tradition" are sufficient, Dissent at 9, but neither history nor tradition supports extending the fundamental right to marry to same-sex couples.
Yet there are cases in which a right was recognized as fundamental despite an absence of history and tradition. In the domestic relations field, the classic examples are Loving and Lawrence v. Texas, 539 U.S. 558 (2003) (holding the Texas sodomy statute unconstitutional), both of which struck down provisions supported by considerable history and tradition. But as yesterday's post noted, at the times these decisions were handed down, the challenged provisions existed only in 28-30% of the states. A strong majority of states presently refuse to allow same-sex marriage.
A better analogy might be the landmark civil rights cases of the late 1950s and early 1960s. These cases adopted broad theories of nondiscrimination which did not have strong support in existing state law. For example, when the Supreme Court held that segregated schools were unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954), most schools across the country were segregated. But there was a strong and growing sense in public opinion that discrimination by race was wrong, and that schools should be color-blind. The Brown opinion was not based only upon the policy preferences of the judges; it was based upon strong and growing public sentiment that the right to a good education ought to be color-blind.
What the Kitchen majority needed to do, therefore, was to provide more support outside the judiciary itself for holding that the fundamental right of marriage extends to same-sex couples. It could have spoken of the long-term trend toward abolishment of all forms of discrimination against gay and lesbian persons. It could have traced the history of that trend through such landmark cases as Romer v. Evans, 517 U.S. 620 (1996), Lawrence, and Windsor. It could have provided compelling statistical evidence that a majority of the American people support same-sex marriage, such as the public opinion surveys cited in yesterday's post. It could have noted the overwhelming support for same-sex marriage among young people, and noted the exceptionally steady shrinking of public opposition to same-sex marriage.
But in a direct sense, the Kitchen majority opinion did very little of this. As noted yesterday, the majority avoided the grand rhetoric present in some of the district court opinions on the issue, including even the decision under review. The closest it came was a section expressing general agreement with other cases that have employed such rhetoric, slip op. at 32, and, even then, the court did not quote much of the rhetoric.
As a result, the Kitchen majority opinion falls flat. It relies primarily upon a provably false assertion that the fundamental right to marriage is completely unconditional. It fails to summon the forces of history, tradition, and especially public opinion in the manner common to decisions that recognize or expand a fundamental right. As opinions in favor of same-sex marriage go, Kitchen is surprisingly and unexpectedly weak.
Whether this fact makes a difference remains uncertain. When this issue reaches the Supreme Court, there will be so many eloquent amicus briefs written on both sides that the quality of the opinion under review is unlikely to matter much. To the extent that the opinion under review does matter, however, the present opinion is more subject to attack than many of the district court opinions reaching the same result.