More on Utah

Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so.

The district court ruling striking down Utah's an on SSM (note the video of the Salt Lake City DA calmly willing to follow the court) will likely be stayed -- the hearing is on Monday (noted by SCOTUSBlog on Twitter) and the appellate court is likely if necessary.  Looks like some same sex marriages -- Christmas (Festivus?) gift and card alert -- are already occurring.  The private and religious ceremonies will continue.

When these issues with a religious overtone are debated, it somewhat amuses me that I find myself among two often competing groups -- those who don't think much of religion or laws that seem to benefit it over the interests of others and those who find equal rights and such threaten their religion. I find both somewhat misguided -- the law can take into consideration to some degree religious belief and there are religions that respect the socially liberal positions I generally favor.  The beliefs of some minority should not lead us to denounce religion as a whole. And, same sex marriage rights do not disrespect religious belief.  As with abortion, some of these people skip over the true diversity of religious belief.

The opinion as a whole reflects something the Supreme Court first truly flagged in Romer v. Evans, after a dismissive statement in Bowers v. Hardwick -- homosexuals warrant the same basic rights as the rest of society.  Windsor, in a tentative way, held that marriage is included -- at the very least, if the law was blatantly discriminatory, it could not stand. The federalist aspect cushioned the blow, but as the judge here noted “its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development.” The judge took Scalia at his word -- marriage logically follows, even if the ruling itself did not so hold. 

There is some force here, but law is like that -- once the Supreme Court started to incorporate the BOR, the dominoes were mostly likely to fall. But, it took time. Brown to Loving took time. Such is the case here. This is not a trivial matter and it is how the law often develops. Some will sneer or cite slippery slopes, but it took a decade for Lawrence to lead to Windsor. A decade provides some time for things to develop, both law and society. The signs were there in the 1990s.  DOMA was a sort of retrenchment exercise, which as often is the case, was doomed to failure in time.

This ruling follows the logic of Lawrence -- intimate association rights were there applied to same sex couples. Basically, they were not held to be claiming something "new." Ditto here -- "Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond." The New Mexico Supreme Court didn't want to decide if the right to marry entailed marrying members of the same sex. The court here (correctly) held:

The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights. The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.

The usual tropes such as procreation (tell that to my grandmother when she re-married) work even less when a fundamental right is involved. At worse, the precedents show intermediate scrutiny is required, and even there in a case involving child support -- not a total ban on marrying the person you would most likely be inclined to marry.  Since the ruling held that the law did not meet rational basis, that won't work either.

Baker v. Nelson was held to be overwhelmed by later cases, especially Windsor and Perry (during oral argument, Ginsburg almost sneered at the idea it was still good law, and even Scalia didn't really try to contradict her) -- at the very least, it was a substantial federal question and Roberts' dissent that left the matter open was cited partially in support. A constitutional amendment (and its baggage) banning same sex marriage also is not the same type of law in that case. Citing that case any more is a weak avoidance device.

10th Cir. precedent was held to bar applying strict scrutiny to sexual orientation. A sex discrimination argument was recognized as reasonable but not required to be addressed given a lesser ground was deemed enough. The same was noted as to an animus argument -- that the amendment shows animus and thus a type of rational basis with teeth would be warranted.  Windsor's "teeth" test was summarized:

The Court’s emphasis on discriminations of an unusual character suggests that, when presented with an equal protection challenge, courts should first analyze the law’s design, purpose, and effect to determine whether the law is subject to“careful consideration.” If the principal purpose or effect of a law is to impose inequality, a court need not even consider whether the class of citizens that the law effects requires heightened scrutiny or a rational basis approach.  If, on the other hand, the law merely distributes benefits unevenly, then the law is subject to heightened scrutiny only if the disadvantages imposed by that law are borne by a class of people that has a history of oppression and political powerlessness. 

The judge decided not to rely on this to him rather undeveloped approach since the law's purposes are "so attenuated [to its text] as to render the distinction arbitrary or irrational."  As I noted a few years back, "rational basis" should be at least somewhat rational.  These arguments lead to rather weak arguments (here rightly rejected) about how denying same sex couples marriage rights will further more stable families or such. The idea that some mother/father "gold standard" furthers that sort of thing more is dubious. But, even if it is possible, denying SSM is not likely to further it. What? If same sex couples can marry, different sex couples will be less likely to get married and responsibly procreate or something?  And:

If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.

As noted, this might work if "tied to laws concerning adoption and surrogacy, not marriage," but same sex couples can adopt and surrogate in Utah.  The opinion notes in this section that the net affect will burden the children in same sex families, including by showing them that the state doesn't think their parents deserving to get married. This is said in passing, but for the honest among us, it shows the point -- "responsible procreation" is not the reason.  Same sex couples are deemed different and deserving of a special barrier. There is animus and "careful consideration" is warranted, especially when a state constitution is selectively amended to target such couples.  But, truth telling excites some people as we saw in the Windsor case and this way provides a somewhat lower temperature.

Meanwhile, a marriage where one of the members changed their sex was upheld by the Indiana Court of Appeals. Time marches on.