"Utah and same-sex marriage: Issues on appeal"

The 10th Cir. heard oral arguments in the SSM case and analysis/audio can be accessed here.  This will be the next step in the process over the next year or so. 

Usual caveats, but listening, it is unlikely to me that the claimants will lose here.  It is true the one judge suggested if "rational basis" is used that the state has a decent case -- since the evidence regarding SSM is open to question -- even though repeatedly judges have now held even that level of scrutiny cannot be met. Also, at least one judge seemed wary about deciding the matter on summary judgment -- a lower court judge recently might have been the first since Judge Walker to protect SSM after full factual hearings. Seems that would be a logical way to delay though the ball is rolling so fast, that judges don't seem to think that necessary.

Such a delay for a hearing might be seen as something of a loss, but to me, not that big of one -- imagine a few years back if judges think some Utah law against SSM is so dubious that the matter should be given a close look by the lower court.  One judge, e.g., challenged the claim that "animus" here (which would warrant rational basis with teeth -- the sort of "careful" review cited in Windsor, though people keep on saying it didn't provide any guideline)  is merely a legal question. Recall that there also is a trend to focus on "illegitimate" purpose here. Windsor itself:

In determining whether a law is motivated by an improper animus or purpose, discriminations of an unusual character especially require careful consideration. 

(cleaning up some quotations)  It isn't just blind hate.  This helps address the concern that following long practice here is a curious thing to reject. Also, as noted, the amendments in general at issue in these cases are specifically unusual in character, different from usual marriage laws.

This along with the fact that marriage is involved can be a way to avoid overruling precedent that did not give heightened scrutiny to sexual orientation. Some of the questioning did suggest that gender discrimination might be at issue here. This raises the almost amusing novel claim that same sex marriage promotes the compelling interest of diversity with a citation to an opinion by Justice Brennan. What if the couple is diverse in other ways like race or something? That work?  The gender assumptions here alone can bite ya, since it raises concerns for gender stereotypes that just opens up gender discrimination claims.

The broad nature of the ban here as compared to any number of other marriage laws (which yet again have changed over time though some of them probably were cemented in constitutional provisions too -- coverture, for instance -- but today they too would be unconstitutional)  to me is a glaring issue. This provides an opening to strike down laws without using full heightened scrutiny -- any reasonable doubt only underlines that it is an "improper" thing to do, since it highlights the value of the flexibility of normal legislation as compared to constitutional bars.

Still, since marriage is involved particularly, more than equal protection based on class of the individual is involved.  And, basically, these cases are but of a piece on the more expansive nature of "marriage" in the current day. The contraception cases underline that marriage is not merely about childbearing -- people have the right there not to have children.  Such is ultimately the broader interpretation provided by Lawrence v. Texas.  The same overall theme applies to changing sex roles.  A question also pointed out how denial here actually harms children, a concern flagged in Windsor itself.  Again I quote (cleaning up):

The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence,  and whose relationship the State has sought to dignify [editor note: here, pointedly refuse to dignify]. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

As one or more judges note, the majority, not dissents by Scalia and Alito is what lower court judges need to follow.  I assume it was in the briefs, but it does bother me a bit that Turner v. Safley was not even mentioned during the oral argument. The case provides us with a reminder of just what marriage entails these days, not merely procreation. The word "inmate" can be replaced with "same sex" to get us to the same place:

First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements  are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

And, to quote Meyer v. Nebraska, the couples can fit into the general "to marry, establish a home and bring up children" idea here.  Note even there the word "bring up" is used -- adoption etc. was around then too. It is not just about "procreation" though the Skinner case flagged that specifically given the nature of the case (sterilization). There too, sterilization can interfere with procreation that arises in the assisted reproduction area. Many same sex couples marry to establish a "home" (with all that entails) and make raising children a better experience, including in all the ways that have a legal aspect. To the degree that marriage was a traditional way to legitimize sex in a safe and controlled environment same thing.  As with contraceptives, a same sex relationship is also a choice in the overall liberty involved in choosing whether or not to have a child.  This is particularly the case regarding bisexuals.  Lawrence is a case in point here: not only do same sex couples fit but the liberty is broader than them.

Anyway, somewhat narrower questions might be focused upon in some of these cases, but ultimately the big picture arises. This is the value of citing Turner -- it honors the true complex and diverse nature of marriage. Opponents here want marriage to be small. It's sad.  As to going too fast, putting aside that it has been long enough, what other "novel" couples should we block from marrying?  At home husbands, e.g., still seems strange to some. Why have no fault divorce if we are supposed to promote two mother/dad families over and above marriage flexibility?  Guess single parent adoption might be pretty problematic too.

Well, this is pretty old news here by this point, but such things should be underlined as these cases reach the appellate stage.