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Whether the three provisions of Utah law prohibiting marriage between members of the same sex and defining marriage as a union between a man and a woman violate individual rights guaranteed under the Due Process and Equal Protection clauses of the 14th Amendment. Therefore, whether Utah must issue marriage licenses to same-sex couples and recognize out-of-state marriage licenses of same-sex couples.
Six Utah residents consisting of three homosexual couples either wanted to be married in Utah or wished to have their out-of-state, same-sex marriages recognized in Utah. The Supreme Court had previously dismissed an appeal on homosexual marriage bans in Baker v. Nelson (1971) “for want of a substantial federal question,” ruling that regulation of marriage was a state matter. Since the 1970s, state and federal courts, state constitutional amendments, and federal and state legislation had variously sanctioned, struck down, supported, or prohibited same-sex marriage throughout the United States.
All six plaintiffs filed suit against the Utah governor, Utah attorney general, and the clerk of Salt Lake County. They challenged three provisions of Utah law: one that prohibited marriage between persons of the same sex, and two stating that a legally recognized marriage consists only of that between a man and a woman. Plaintiffs challenged these laws claiming they violated their individual rights protected under the Due Process and Equal Protection clauses of the 14th Amendment.
The United States District Court for the District of Utah was first to hear the case on December 20, 2013. The court found that the Utah law violated gay and lesbian couples’ fundamental right to marry under the Equal Protection and Due Process clauses of the 14th Amendment of the U.S. Constitution. See the opinion here:
Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013)
The district court ordered the ban on same-sex marriages be lifted immediately. Governor Herbert motioned to stay the court’s ruling, but the district court denied it. On June 25, 2014, the United States Court of Appeals for the Tenth Circuit then heard the case, upholding the ruling but staying the lower court’s mandate to lift the ban on same-sex marriages pending the petition to the Supreme Court. The Tenth Circuit had agreed that Utah’s ban was unconstitutional, but the recognition of same-sex marriages was to be on hold until Supreme Court direction. See the opinion here:
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)
Question before the Tenth Circuit
“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?”
CCJ filed an amicus curiae on petition for a writ of certiorari in support of Herbert
The historical understanding of marriage between a man and a woman is rooted in the very nature of the two sexes. Their biological complementarity allows the formation of unions that are uniquely capable of generating new human life, and it is around this core purpose that the institution of marriage is crafted to benefit society, parents, and children. The United States Supreme Court and state supreme courts have long recognized this understanding of marriage, and a large majority of the states continue to adhere to this historical, biologically rooted definition.
These court decisions and state constitutional enactments continue a rich historical and philosophical tradition of marriage. In the 13th century Henri de Bracton wrote of “the union of man and woman, entered into by the mutual consent of both, which is called marriage,” and “the procreation and rearing of children.” William Blackstone described the relationship of husband and wife as one founded in nature, confined and regulated by civil society. John Locke wrote of the purpose of marriage being the conjunction of the male and female to procreate and to continue the species.
In Baker v. Baker (1859), California’s supreme court recognized that “[t]he first purpose of matrimony, by the laws of nature and society, is procreation.” In Swayne v. L.D.S. Soc. Servs., (1988) the U.S. District Court for Utah recognized that “marriage is the institution established by society for the procreation and rearing of children.” In Loving v. Virginia (1967), the U.S. Supreme Court recognized that “marriage is one of the basic civil rights of man … fundamental to our very existence and survival,” further indicating procreation as an inherent element of the institution of marriage.
The United States Supreme Court wrote in United States v. Windsor (2013) that historically, the states have been the primary determiners of marriage policy in this country, “long … regarded as a virtually exclusive province of the States. … [t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In Baker v. Nelson (1972), the Court dismissed an appeal from the Minnesota Supreme Court challenging a state law limiting marriage to members of the opposite sex “for want of a substantial federal question.” Again, the regulation of marriage in the United States has long been recognized by the Supreme Court as a state matter that lies outside of federal jurisdiction.
Despite these clear demarcations, federal district courts and two circuit courts have overstepped their authority by striking down state laws defining marriage, usurping Supreme Court authority by implicitly overruling Baker. Other borderline-lawlessness includes elected officials having abdicated their duties to defend statutes and constitutional provisions enacted by the governing authorities in their states. Indeed, in state courts, attorneys general from Virginia, Oregon, and California, rather than defending state laws defining marriage as a union between a man and a woman, have instead sided with the opposition to undermine the very laws they were expected to uphold. By 2012 the people of thirty-one states had approved constitutional amendments recognizing marriage as a union between a man and a woman, and yet officials and judges have systematically abrogated these clear expressions of the will of the people.
The Court should grant this writ because the lower courts’ decisions altering the definition of marriage under the pretense of substantive Due Process contravene established Court precedent. The Court has never recognized that the power to redefine marriage encompasses same-sex relationships, and it has cautioned against creating new “fundamental” rights.
There are powerful democratic forces at play on both sides of this policy dispute. Judicial negation of a democratically chosen policy is beyond the purview of the courts. Policy judgements are quintessentially the stuff of the democratic political process. By overturning state constitutional amendments regarding internal social policies, the courts are replacing the will of the people with judicial legislation.
In October 2014 the Supreme Court denied the petition to review the case, the Tenth Circuit lifted its stay, and Utah subsequently had to recognize out-of-state, same-sex licenses. It also had to issue marriage licenses to same-sex couples. The Supreme Court case Obergefell v. Hodges, 576 U.S (2015), based on the same two issues as Kitchen, subsequently ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process and Equal Protection clauses of the 14th Amendment.
The Supreme Court did not accept CCJ’s historical, natural law, and federalism arguments. It essentially ignored the historical understanding of marriage, it ignored the preferences of the majority of the people of the states, it saw no legal difference between heterosexual and homosexual marriages, and it rejected long-held precedent that the regulation of marriage is a state prerogative.