Yesterday, the Tenth Circuit Court of Appeals affirmed the decision of a federal district court in Utah that Utah’s ban on same-sex marriage violates the U.S. Constitution.
We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.
Although the appeals panel stayed the effect of its ruling, the opinion sets the stage for the United States Supreme Court to finally decide an issue that has been brewing at least since the Hawaii Supreme Court ruled in 1993 that barring same-sex couples from marrying violated the Hawaii state constitution, setting off a flurry of federal and state legislation banning same-sex marriage.
In light of the U.S. Supreme Court’s decision in United States v. Windsor, it is highly unlikely that same-sex marriage bans will survive a Supreme Court challenge. Although the Court is usually characterized as being controlled by a bare 5-4 conservative majority (such classifications don’t really hold up in reality because most cases are unrelated to the left-right spectrum), on gay-rights issues, Justice Kennedy has since Lawrence v. Texas staked out positions strongly supporting equality for gays and lesbians.
The road through the district and circuit courts is also increasingly friendly for supporters of same-sex marriage. The decision of a federal district court in Indiana invalidating that state’s ban on same-sex marriage added to the growing, and unanimous, list of federal district courts that have struck down state bans on same-sex marriage since Windsor struck down a portion of the federal Defense of Marriage Act.
Gay-rights groups are understandably ecstatic, but what this trend actually means for LGBT people is unclear. As experiences with racial and gender discrimination have made clear, legal protections often do little to change entrenched discriminatory attitudes, and even strong civil-rights statutes can founder because of the difficulty proving discriminatory intent in court. And the nationwide acceptance of same-sex marriage could yet pose a host of unforeseen challenges as states struggle to modernize their family-law statutes to deal with additional complexities surrounding the transition from jury-rigged same-sex contractual webs to formal marriage, same-sex divorces, and questions about the effect that same-sex marriage will have on the claims of other sexual minorities, including polygamists.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.