Kitchen v. Herbert961 F.Supp.2d 1181 (D. Utah 2013), affirmed, 755 F.3d 1193 (10th Cir. 2014); stay granted, 134 S.Ct. 893 (2014); petition for certiorari denied, No. 14-124, 2014 WL 3841263 (Oct. 6, 2014) is the federal case that successfully challenged Utah's constitutional ban on marriage for same-sex couples and similar statutes. Three same-sex couples filed suit in March 2013, naming as defendants Utah Governor Gary R. Herbert, Attorney General John Swallow, and Salt Lake County Clerk Sherrie Swensen in their official capacities.
The U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional in December 2013. Its order that the state cease enforcing its ban took effect immediately. In January 2014, after stays had been denied by the District Court and the Tenth Circuit, the U.S. Supreme Court granted a stay of the District Court's order pending consideration of the appeal by the Tenth Circuit Court of Appeals.
In June 2014, the United States Court of Appeals for the Tenth Circuit affirmed the decision of the district court, finding that Utah's ban on same-sex marriage was unconstitutional, but stayed their mandate pending petition to the Supreme Court.
On October 6, 2014, the Supreme Court denied the petition for review without comment and the Tenth Circuit lifted its stay, putting into effect its order ending Utah's enforcement of its same-sex marriage ban.
Background On November 2, 2004, Utah Constitutional Amendment 3, which defined marriage as a union exclusively between a man and woman passed by referendum and became part of the Utah State Constitution.
On June 26, 2013, in United States v. Windsor, the United States Supreme Court held that restricting U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions was unconstitutional under the Due Process Clause of the Fifth Amendment, striking down Section 3 of the Defense of Marriage Act (DOMA).
On March 25, 2013, attorneys from the Salt Lake City law firm Magleby & Greenwood filed a lawsuit in the United States District Court for the District of Utah on behalf of three same-sex couples, including one already married in Iowa, seeking to declare Utah's prohibition on the recognition of same-sex marriages unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution. The plaintiffs are Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; and Karen Archer and Kate Call. The court heard arguments on December 4. Peggy A. Tomsic argued for the plaintiffs. Phil Lott and Stan Purser, Assistant Attorneys General, represented the state.
District court
Ruling On December 20, 2013, Judge Robert J. Shelby of the U.S. District Court for Utah ruled in favor of the plaintiffs. He wrote:Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013) at *1
States' rights vs. individual rights The ruling stated that the US Supreme Court "has held that the Fourteenth Amendment requires that individual rights take precedence over states' rights where these two interests are in conflict,"2013 WL 6697874 at *7 and that while Utah has the right to regulate marriage, "it must nevertheless do so in a way that does not infringe the constitutional rights of its citizens,"2013 WL 6697874 at *9 citing Loving v. Virginia and United States v. Windsor.
The court noted that while the state electorate had voted in a popular referendum on the issue, a person's fundamental rights may not be submitted to a vote, citing W. Va. State Bd. of Educ. v. Barnette.2013 WL 6697874 at *1 and *9
Baker v. Nelson not binding Baker v. Nelson was a 1971 Minnesota Supreme Court decision that upheld the state's denial of a marriage license to a male couple. The U.S. Supreme Court dismissed the appeal in Baker "for want of a substantial federal question." Some courts have relied on this dismissal as precedent when considering challenges to same-sex marriage bans. The district court in Utah ruled that "a summary dismissal is not binding 'when doctrinal developments indicate otherwise, citing Hicks v. Miranda (1975). It noted that the Supreme Court recognized in Romer v. EvansRomer v. Evans was a U.S. Supreme Court case striking down a state constitutional amendment adopted by a referendum in Colorado. The amendment prohibited any statutory recognition of sexual orientation. (1996) "that the Constitution protects individuals from discrimination on the basis of sexual orientation."2013 WL 6697874 at *8 The district court also held that the reasoning in United States v. Windsor is "highly relevant and is therefore a significant doctrinal development."
Due process The ruling affirmed marriage as a well-established fundamental right and liberty protected by due process under the Fourteenth Amendment. The court wrote that "the regulation of constitutionally protected decisions, such as ... whom [a person] shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made", quoting Hodgson v. Minnesota.2013 WL 6697874 at *11 While Utah asserted that the plaintiffs were "still at liberty to marry a person of the opposite sex," the court held that for Utah to deny gays and lesbians the right to choose a same-sex spouse renders their fundamental right to marry meaningless.2013 WL 6697874 at *13-14
The court held that requiring the ability to naturally reproduce as a qualification to marry "demeans the dignity ... of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State's reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate."2013 WL 6697874 at *15 The court affirmed a "constitutionally protected right not to procreate", citing Griswold v. Connecticut. The court also held that same-sex marriage and interracial marriage, as held in Loving v. Virginia, are not new rights but "simply manifestations of one right—the right to marry—applied to people with different sexual identities."2013 WL 6697874 at *16 The court added that the Constitution allows different outcomes "when its principles operate on a new set of facts that were previously unknown". It quoted Lawrence v. Texas: [T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.
Because Utah's ban on same-sex marriage restricted a fundamental right, the court applied the test of strict scrutiny and found that Utah has not shown that the law is "narrowly tailored" to meet "a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry."2013 WL 6697874 at *18
Equal protection When a state violates equal protection by excluding a group from benefits, the court stated that it must find a rational connection to the state's legitimate interests in order to uphold the exclusion, citing Loving v. Virginia and several other cases.2013 WL 6697874 at *24 Utah cited its legitimate government interests to be: responsible procreation, optimal child-rearing, proceeding with caution, and preserving the traditional definition of marriage.2013 WL 6697874 at *25-27
The court stated it "defies reason" to say that permitting same-sex couples to marry will "affect the number of opposite-sex couples who ... have children outside of marriage",2013 WL 6697874 at *25 citing Hollingsworth v. Perry.a similar 2010 federal district court ruling in California, now Hollingsworth v. Perry in the US Supreme Court Regarding Utah's optimal, biological, and ideal goal of child-rearing, the court noted that "the State has presented no evidence that opposite-sex couples will base their decisions about having children on the ability of same-sex couples to marry"2013 WL 6697874 at *25-26 and quoted United States v. Windsor, holding that "[t]he law in question makes it even more difficult for the children [of same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives" and that it "also brings financial harm" to them.2013 WL 6697874 at *26 The court held that proceeding with caution because of "unsupported fears and speculations" about gay marriage is not a permissible basis for treating gay people differently, adding that "the process of allowing same-sex marriage is straightforward and requires no change to state tax, divorce, or inheritance laws."2013 WL 6697874 at *29 and *27
Regarding the preservation of tradition, the court held that "[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack," quoting Williams v. Illinois. The court noted that the traditional view of marriage has in the past led to government enforcement of stereotypes about women and moral disapproval of interracial marriage, citing Lawrence v. Texas.2013 WL 6697874 at *27 That case rejected moral disapproval as a legitimate state interest,2013 WL 6697874 at *17 and Justice Scalia, in his dissent, wrote that the majority's decision made it impossible to avoid same-sex marriage, because "preserving the traditional institution of marriage" is just a more pleasant way to describe "moral disapproval". The district court also noted that its decision to recognize gay marriages "expands religious freedom because some ... congregations in Utah desire to perform same-sex wedding[s]" and are now able to do so, while others may continue to define marriage for themselves.
In summary, the court held that "the State was unable to articulate a specific connection between its prohibition of same-sex marriage and any of its stated legitimate interests. At most, the State asserted: 'We just simply don't know. The court did not find Utah's argument persuasive and ruled that the prohibition of same-sex marriage failed a rational basis review.2013 WL 6697874 at *28
Higher levels of scrutiny Citing Loving v. Virginia, the court argued for but did not feel the need to apply intermediate scrutiny on the basis of sex discrimination "because Amendment 3 fails under even the most deferential level of review."2013 WL 6697874 at *20 On the question of discrimination based on sexual orientation, the court was bound by Tenth Circuit precedent in Price-Cornelison v. Brooks that sexual orientation is not "a protected class, which would warrant heightened scrutiny".2013 WL 6697874 at *21 Regarding a test of careful consideration based on Louisville Gas & Elec. Co. v. Coleman and emphasized in United States v. Windsor, the court held that "the avowed purpose and practical effect" of Utah's Amendment 3 was "to impose a disadvantage, a separate status, and so a stigma," but the court was unsure if that qualified as "discriminations of an unusual character" that would "especially require careful consideration." The court was wary of applying that test "in the absence of more explicit guidance" from the U.S. Supreme Court.2013 WL 6697874 at *22-23
Conclusion In the conclusion of the ruling, the Court found Utah's arguments "almost identical" to those Virginia made against interracial marriage in 1967 in Loving v. Virginia;
Response