The Ruling in Utah Could Mean The U.S. Supreme Court May Be Deciding The Issue Of The Constitutionality Of Same-Sex Marriage Sooner Than It Had Anticipated

Paula Lopez, January 2, 2014.

After cautiously avoiding a ruling on the issue of the legality of state bans on same-sex marriage it is increasingly likely that the U.S. Supreme Court will be forced to decide this issue.  In Windsor v. United States, decided in June 2013, the Supreme Court struck down a provision of the Defense of Marriage Act (DOMA) barring federal marital benefits to same-sex couples who had been married in states where same-sex marriages are legal. In its ruling, the Court expressly limited its holding to the issue before it and made it clear that the authority of a state to define who can get married was not an issue before the court.

Decided by the Supreme Court at the same time was Hollingsworth v. Perry, which involved an appeal of a federal court’s decision finding California’s “Proposition 8”, a voter-approved initiative banning same-sex marriages, to be unconstitutional.  Rather than address the merits of the federal court’s decision, the Supreme Court found that the proponents of Proposition 8 did not have standing to appeal the federal court’s decision when California officials refused to defend the law.   The practical effect of the ruling was to permit same-sex marriages to resume in California without having to address the state’s authority to define who can marry.

Just before Christmas, in Kitchen v. Herbert, District Court judge Robert J. Shelby struck down Utah’s state constitutional amendment forbidding same-sex marriage as violating the plaintiffs’ Fourteenth Amendment due process rights.  The 14^th amendment prohibits any state from making or enforcing laws that infringe on the fundamental rights of its citizens, of which marriage is one.

Judge Shelby’s decision held that the plaintiffs have a fundamental right to marry that extends to their choice of a same-sex spouse.  Given such a right, any state laws passed affecting that right must be narrowly tailored to serve a compelling state interest.   In analyzing the constitutionality of  Utah’s ban on same-sex marriage, Judge Shelby held that the State of Utah’s proffered legitimate government interests of fostering responsible procreation and optimal child-rearing environments, its right to proceed with caution in deciding to extend marriage rights to same-sex couples and to preserve the traditional definition of marriage, are not rationally related to Utah’s prohibition of same-sex marriage.

Following the decision in Kitchen, a record breaking number of same-sex marriages have taken place in Utah.  The State of Utah’s requests for a stay of the district court’s decision pending appeal were denied by Judge Shelby and also by the U.S. Court of Appeals for the 10^th Circuit.  Now, the State of Utah has filed a petition with the Supreme Court requesting a stay of Judge Shelby’s ruling. The granting of a stay would permit Utah to stop issuing marriage licenses to same-sex couples until the appeal is decided by the Tenth Circuit.  It is believed by some that by seeking a stay from the Supreme Court, the State of Utah anticipates that the case will ultimately be heard by the Court.  The Supreme Court’s apparent reticence in addressing this issue may be short-lived.