April 10, 2014
Scottie wrote a great point by point review of the argument. I won’t get to every point, but I will try to dig in a little bit. Let’s get to it…
By this time, if you are reading this particular website, you know the basic facts. But, it is worth restating here.
The first time Utah specifically forbid same sex unions was by Legislative action in 1977. In 2004, during the height of the Bush Administration’s effort to politicize marriage equality and the proposed federal Constitutional Amendment, the Legislature tacked on two more bills. The first was to add Section 30-1-4.1 to the Utah lawbooks. It is one of your more broad gay marriage bans. It doesn’t ban personal contracts like some of the more extreme measures, but it did specifically bar civil unions or any law that would grant any marriage like benefits.
The other measure they passed was a resolution to put what became Amendment 3 on the Nov. 2, 2004 ballot. You would think the law would be enough, but Karl Rove and team were pushing marriage amendments to be placed on the ballot to boost turnout, and so the Utah Legislature complied. It passed with 65.9% of the vote, and went into force as Article I, Sec 29 in January 2005. (A side note: read the first few paragraphs of that Rove link if you want to remind yourself just how far we have come in ten years.)
So that brings us to this case. The plaintiffs are a gay male couple and two lesbian couples who have lived in Utah for a long time. (See their photo on Restore Our Humanity’s Facebook page.) Utah is their home, and they have built their families there. They have no interest in moving, and why should they?
That brings us to the main event: the application of the 14th Amendment Equal Protection clause to Utah’s marriage equality ban. Looking back to Windsor, we need to distinguish our Equal Protection clauses. In that case, the Equal Protection clause was that of the 5th Amendment, which applies to the federal government. As Judge Shelby pointed out in his district court decision, that 5th Amendment protection aligned with the broad concept of federalism and the right of states to define marriage for themselves. That is, New York state had authorized Edith Windsor’s marriage, and the federal government should not override that.
In Windsor, these interests were allied against the ability of the federal government to disregard a state law that protected individual rights. Here, these interests directly oppose each other. The Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage. (District court decision at 5-6)
With respect to the federalism question, the 14th Amendment must in a sense overcome that question. In other words, the equal protection violation must be severe enough to demand that the federal law take supremacy over the offending state law. Like he did in Lawrence v Texas, Justice Scalia argued in his Windsor dissent that the Court’s holding would inevitably lead to courts deciding that marriage equality was required of the states as well. Ultimately, given the many decisions at the district court level going our way, he was indeed correct about the district courts. Federalism just can’t trump an offense to the 14th Amendment as blatant as something that is motivated by “bare … desire to harm” as described in Windsor. In the end, federalism can’t really trip up the case as it is outweighed by the 14th Amendment, and puts the whole ballgame on the equal protection case.
In today’s argument, the attorney for the state, Gene Schaerr, argued that Windsor was primarily a case about federalism. Judge Lucero, for his part, was having none of that. He repeatedly sparred with Shaerr on this question, remarking that Windsor, at the point in the decision was actually laid out, was specifically tied to Equal Protection:
In turning to Windsor, … Justice Scalia in his dissent really highlights this, that when the Court was speaking in Windsor about marriage, that it very clearly indicated and gave a direction that it was going to be talking about federalism. But, in fact, when it came to dispositive language of Windsor, … it directly disavowed a decision predicated on federalism, and instead turned to equal protection and due process as the deciding elements of that case. (Audio at 10:30)
Lucero goes on to state that he was not convinced by the power of federalism in that case, and Shaerr’s argument that it gave states complete dominion over marriage. Shaerr states that New York had decided on a more relationship based model of marriage, and that Utah had the power to define marriage for its own purposes.
Standard of Equal Protection review
This has been the subject of much academic speculation both before and after Windsor. Prior to Romer v. Evans, it was assumed that were really only three, somewhat distinct, levels of scrutiny. Strict scrutiny primarily applied to race and religion, intermediate scrutiny applied to gender issues, and rational basis applied to all other categories of people. Romer tweaked that by adding a fuzzy rational-basis plus test. There has to be a rational basis for the law that is connected to a legitimate government interest.
In the Supreme Court cases that have touched on LGBT issues since then, this question has been honed. At this point, Windsor is the closest thing to a controlling test. While it is based on the 5th Amendment’s equal protection clause, it can be reasonably applied here. Ninth Circuit Judge Stephen Reinhardt explained the Windsor standard pretty succinctly in a case about jury selection:
Windsor scrutiny “requires something more than traditional rational basis review.” Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny. (SmithKline Beecham v Abbott Laboratories, at p.23)
Of course, this was a subject of today’s oral argument. The attorney for the state, Gene Schaerr led with his argument why sexual orientation should not get this heightened scrutiny. Judge Lucero then brought up Loving, and the question why the gender discrimination shouldn’t get intermediate scrutiny as race got strict scrutiny in Loving.
Shaerr sparred with Lucero on this question, with Lucero following up with the question of whether marriage is a fundamental right. Shaerr acknowledged that marriage had been treated as a fundamental right (meaning that it could be subject to a substantive due process claim and possible higher scrutiny).
The first question Peggy Tomsic got was on precisely this issue, and she stated that this court should get a heightened level of scrutiny under Windsor or as a suspect gender-based class. On the fundamental right to marry and the substantive due process claims, courts have traditionally applied strict scrutiny. The question, of course, then becomes a matter of does this fundamental nature apply to whom you get to marry as well as just the fact that you can marry.
Tomsic argues that Windsor and Romer state that where a law categorizes a group for discrimination, that rare law causes the court to take a special look at those laws to be sure the effects of those laws are not to harm the class. That standard calls for the court to review the design, purpose, and practical effect of the law, and if the class is injured, the state then has a burden to show that there is a really legitimate interest.
Generally, while Judge Kelly seemed to be fully on board with the State throughout the questioning and especially on this issue, Judges Lucero and Judge Holmes (probably) seemed inclined towards applying this heightened level of scrutiny.
The State’s Interest in Denying Marriage Equality
The state, for its part, is hoping that just the lowest rational basis standard applies and runs with that premises. The district court ruled that Amendment 3 couldn’t even survive that, but they totally, completely, entirely disagree. Judge Shelby just got the application wrong, they argue. They only need to show a plausible policy reason for the classification and that the definition furthers their interest. Of course, all of this is refuted in the plaintiff’s brief and was refuted at today’s hearing. The most basic statement of that boils down to this:
Even assuming that each of the governmental interests proffered by the State is legitimate, there simply is no rational connection between any of those asserted objectives and prohibiting same-sex couples from sharing in the protections and obligations of civil marriage. (Pl. Answering Brief p.64)
But the state has some very serious research from some very serious scientists to back up their point. Their basic point is that the state’s public interest in marriage is to encourage the creation of stable husband-wife families for children. Never mind that they had no actually serious research that showed that same gender relationships were any less stable for child development. In fact, the state’s briefs relied heavily on the work of Mark Regnerus, who has now been thoroughly discredited and forced the State to send a letter discounting his work.
Shaerr argued that while the children of same-sex couples legally married in other states would be stigmatized under Amendment 3, that Utah had the authority to do so. After all, the children of polygamists were stigmatized by the ban on polygamy. This was very quickly dismissed, and Shaerr was told that the case today was about gay marriage not polygamy.
Shaerr then turns to the state’s interests in denying marriage equality, chief among them was what the state is calling “gender diverse parenting.” In other words, the state feels that children should have both “an involved mother and an involved father.” He states that Utah feels gender diverse parenting is at least as important as racial diversity in education, an interest that the courts have agreed is legitimate.
But how does banning marriage equality advance that state interest you ask? Well, the classification is rational if the benefitted community is differently situated with respect to the right in question. Lucero asks the next logical question: Why does blocking gay marriages make it more likely that straight couples will get married?
We believe that redefining marriage in genderless terms, and moving from the man-woman definition. And the man-woman definition inherently, although subtly, conveys a message … that a mom and dad are important. And when you redefine marriage in genderless terms, you dilute that message and you dilute that norm in the law. As Profs. Hawkins and Carroll say, one of the messages to heterosexual men … is that we don’t really need you for your children because we have this alternate relationship where two women can get married and be impregnated artificially. And they can create a family without a man, and that teaches, in Justice Kennedy’s words, that gender is not that important, and that dads aren’t that important.
Just after this, Shaerr goes on to cite Maggie Gallagher, of NOM fame, that boys will not learn proper masculinity without a father. So, deep science there, don’t you know. But the next question that you would really want to ask is how is this marriage ban at all narrowly tailored to address this issue, even if you accept Maggie G.’s hypothesis.
Tomsic, in her portion of the time, argues that even if you are applying a rational basis test, the interests must really be legitimate. The rational basis test is not so weak as to allow “flimsy” rationales. Judge Kelly emphasized the important nature of federalism to Windsor, but Tomsic argues that there is no study that shows any legitimate evidence that children are harmed in same-sex couples.
Then we get to the Regnerus study, and Judge Holmes basically asked if the State had any case whatsoever at this point. The letter that State sent tried to walk back from their reliance on the study, and that left Shaerr with the argument that the State is allowed to legislate for the risk of negative effects of marriage equality.
This is a concept that has really come to the fore more recently legally. And there was quite a back and forth:
Kelly: That’s an animus argument, isn’t it. Judge Shelby didn’t find animus, and I’m struggling to see how that is applicable here. … Until 2010, nobody even thought of recognizing as a legal matter same sex marriage. So what Utah has done is validated what has been historical practice forever. How is that the same as Romer where they attempted to say that same sex couples or any on sexual orientation grounds is barred from legal relief. Those are two different things, aren’t they.
Tomsic: They are not, your honor. What the court was looking at in Romer, was what does the target to the class do? THat is, how are you differentiating between these classes of individuals, and are you differentiating to treat them unequally? ANd if that is the situation, that is a very rare type of law. And you can take about semantics, but there is no question looking at the text of Amendment 3, and the other marriage discrimination laws. The only thing those laws did was target same-sex couples, and make them unequal. None of those laws established the right to marry, gave benefits or incentives. Their only purpose and effect was to exclude same-sex couples from marriage or marriage recognition.
The conversation continues on this thread discussing the concept of animus in a back and forth until Judge Lucero intervened, and took the discussion off to the general principle of the statement that public policy cannot trump a constitutional right.
In the Oklahoma case, Article III jurisdiction is a bigger issue. The case was sent down once because of jurisdiction and for having sued only the Governor and Attorney General. In this case, the plaintiffs sued both the governor and AG, as well as a county clerk. However, Tomsic argued that the executive branch, through those two executive officials, wields more power in Utah and thus grants standing under Article III of the constitution.
While a standing decision seems unlikely, it is a remote possibility that the court could dismiss the case for lack of standing. That would likely leave Utah with marriage equality, but a lot more questions for the other states in the 10th Circuit. However, that seems more likely in Bishop, and we will probably to get a decision on the merits here.
First, I apologize for the rambling nature of this post. I know it is a bit long, but there are a lot of issues to be discussed and I wanted to get this up as soon as possible. If you find mistakes, by all means, let me know in the comments.
I think I would be inclined to agree with the folks on twitter and all over the web that think this will be a tight decision. It seems that Judge Lucero is on our side, and Judge Kelly is with the state. However, given his comments in argument, Judge Holmes could conceivably go either way. If he doesn’t think heightened scrutiny applies, is Utah’s flimsy “risk” to the state and sketchy nexus to that risk enough to sustain the Amendment 3 through the rational basis test? Possibly, and Judge Holmes seemed to indicate that. However, we will likely have plenty of time to debate that question over the next few months.