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Utah’s same-sex marriage ban falls (FURTHER UPDATED)

UPDATED 10:05 p.m. Saturday.  Judge Shelby has scheduled a hearing for Monday morning on the state’s stay motion.

UPDATED 7:46 a.m. Saturday.  State officials began their effort to postpone this decision by filing a motion in the district court Friday evening.  It can be read here. Among other arguments, it noted that other courts have ruled against same-sex marriage.  State officials also have asked the Tenth Circuit for a delay of Judge Shelby’s decision while he considers the stay motion.  That motion in the court of appeals is here.

 UPDATED 6:55 p.m. Friday.  The Utah attorney general announced plans to seek a postponement of the ruling pending an appeal to the Tenth Circuit.  A press release is here.  FURTHER UPDATE: The state’s appeal to the Tenth Circuit has now been docketed as 13-4178, Kitchen v. Herbert.


Directly applying the Supreme Court’s decision striking down the federal Defense of Marriage Act to a state’s ban on same-sex marriage, a federal judge in Salt Lake City ruled Friday that Utah’s voter-approved state constitutional amendment violates the federal Constitution.

“The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity,” U.S. District Judge Robert J. Shelby ruled in a fifty-three-page opinion.  He was the second federal judge to nullify a ban imposed by a state’s voters at the ballot box; the first such ruling nullified California’s “Proposition 8” — a ruling that the Supreme Court left intact in June but without a direct ruling on it.

If Judge Shelby’s ruling withstands an appeal, it would make Utah the eighteenth state where same-sex marriages are allowed, and the seventh in which equal marriage rights were established by a court ruling.

While the Supreme Court in the case of United States v. Windsor explicitly avoided ruling on whether a state ban on same-sex marriage was valid, the Salt Lake City judge interpreted the decision to mean precisely that.  The important “federalism concerns,” about a state’s control of marriage rights, “are insufficient to save a state-law prohibition that denies the [three couples suing in this case] their rights to due process and equal protection of the law.”

Along the way toward his ultimate conclusion, Judge Shelby ruled that the issue of state authority to outlaw same-sex marriage is no longer controlled by a one-line 1972 Supreme Court decision in a Minnesota case, Baker v. Nelson.  Opponents of same-sex marriage have often relied on that ruling, which said simply that such a ban did not raise a “substantial federal question.”

The Utah judge said a summary ruling like that from the Supreme Court is no longer binding on lower courts, “when doctrinal developments indicate otherwise.”  He said that there have been several such developments, citing several decisions on gender equality and on equal rights for homosexuals.

While some other courts have found that the Baker precedent still determines the issue, Judge Shelby said that all of those rulings had been issued before the Supreme Court ruled in the Windsor case last June.  In that decision, the Court found that the Defense of Marriage Act’s provision that all federal benefits keyed to marriage were limited to opposite-sex marriages violated already-married gay and lesbian couples’ right to equality.

Although the Windsor decision did not answer the issue before him, Judge Shelby wrote that “its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development.”  The Supreme Court, he noted, foresaw that its decision in that case would lead to a number of lawsuits raising the very issue of a state’s authority to ban same-sex marriage.

In the wake of the Windsor decision, “there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial federal question,” the Utah jurist said.

His ruling struck down a state constitutional amendment, adopted by Utah voters in 2004 and taking effect on January 1, 2005 (“Amendment 3”), declaring that “marriage consists only of the legal union between a man and a woman.”  Judge Shelby also nullified two state laws saying in essence the same thing — one passed in 1977, the other in 2004.

His order explicitly barred the state from enforcing any of those three enactments.

The judge’s conclusion rested on both a finding that the ban violated same-sex couples’ right to liberty under the Due Process Clause, and a finding that it violated their rights to equality under the Equal Protection Clause.

The ruling rejected the state’s argument that the couples were seeking the creation of a new right to marry a person of the same sex.  What is at issue, Judge Shelby said, was whether there is an equal right of a fundamental character to enter into marriage that cannot be denied on the basis of sexual identity.  The right was the right to marry equally, the judge said.

He rejected all of the arguments that the state had put forth in its effort to justify the ban.

The judge made no mention of any delay in enforcing his ruling, but presumably the state would be free to seek to delay it if it wished to appeal to the Tenth Circuit.


Recommended Citation: Lyle Denniston, Utah’s same-sex marriage ban falls (FURTHER UPDATED), SCOTUSblog (Dec. 21, 2013, 11:14 AM),