'Windsor' leads to invalidation of state bans on same-sex marriage

 Scott Forsyth, The Daily Record Newswire

Last June the Supreme Court invalidated Section 3 of the Defense of Marriage Act. The section declared federal law would only honor a marriage between a man and a woman.

The court found the section to infringe upon the right to marry and the government could not offer a legitimate purpose for the infringement. The court made much of the fact that historically the states, not the federal government, have defined the marital relation, Windsor v. United States, 133 S.Ct. 2675 (2013).

In a stinging dissent, Justice Scalia warned the logic of the majority’s decision would compel courts to invalidate state laws that denied same-sex couples the right to marry. His warning has proved prophetic.

Just before Christmas, not one but two district courts struck down state laws on the subject. The decision receiving the greater attention came out of the reddest of the red states, Utah, Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013). The other decision involved Ohio and is equally significant for what the court said in dicta,. Obergefell v. Wymyslo, 1:13-CV-00501 (S.D. Ohio Dec. 23, 2013).

In Kitchen, three same-sex couples wanted to marry in Utah but couldn’t, because an amendment to the state constitution limited marriage to opposite-sex couples.

The court started out agreeing with Utah that “the regulation of marriage has traditionally been the province of the states, and remains so today.” “But any regulation, ..., must comply with the Constitution.”

Here is where the ban on same-sex marriage failed. It denied to “gay and lesbian citizens their fundamental right to marry, and in so doing, demean(ed) the dignity of same-sex couples for no rational reason.” Down went the amendment in its entirety.

The court noted the right to marry is grounded in the guarantee of liberty under the Due Process Clause. The Supreme Court celebrated marriage as “the most important relation in life” as long ago as 1888. The freedom to choose one’s spouse is “central” to the relation.

The Supreme Court will look suspiciously on any law which intrudes upon the freedom to choose. The “most famous” example is Loving v. Virginia, 388 U.S. 1 (1967), which invalidated a ban on interracial marriage. The fact a person could marry a person of his or her race was irrelevant. Similarly, the ability of the plaintiffs to marry a person of the opposite sex was irrelevant, especially given their undisputed testimony they could not bond with such a person.

Utah argued the plaintiffs did not qualify for marriage, because they could not procreate. It cited Supreme Court language linking the two acts.

The court dismissed the argument, citing other Supreme Court language that the purpose of marriage is more than procreation. The institution is important as an expression of commitment, is spiritually significant, and provides access to important benefits.

Having determined that the plaintiffs had a fundamental right to marry, the court then analyzed the sufficiency of the justifications for the ban.

Normally, when a law infringes on the exercise of a fundamental right, the law must pass strict scrutiny. In this case the court held the ban did not, without explaining why. Instead, it turned to the lower test of rational basis and held the ban on same-sex marriage did not bear any rational relationship to the several goals advanced by Utah.

The state did not present any evidence that allowing same-sex marriage would discourage opposite-sex couples from marrying or having children. Utah’s “gold standard” of an intact, biological, married family headed by a man and a woman “harms” all adults and children who do not meet the standard.

Proceeding with caution for fear of the consequences of a change in the law is not a legitimate interest. Otherwise, courts would lose much of their power to overturn statutes.

Preserving the traditional view of marriage, to quote Justice Scalia, “is just a kinder way of describing the State’s moral disapproval of same-sex couples,” a viewpoint rejected by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).

The holding in Obergefell is narrower. The survivors of two same-sex couples, who married outside Ohio, wanted the state to recognize their marriages and name them as spouses on the death certificates of their deceased spouses. Ohio law prohibited the recognition of same-sex marriages.

The survivors did not mount a facial challenge to the constitutionality of the law. They argued that as applied to them the law violated their due process rights. The court agreed.

Initially the court avoided the question whether same-sex couples had a fundamental right to marry. Instead, it held same-sex couples married in one state had a fundamental right to have their marriage recognized in another state which did not otherwise permit same-sex marriages. Doing so “favors stability in legal relationships, vindicat(es) justifiable expectations, and prevent(s) casual evasion of legal duties and responsibilities.”

Like the court in Kitchen, the court in Obergefell applied rational basis to the law. Ohio advanced the same justifications as Utah and they received the same cold reception.

In a series of footnotes the court did address the question it avoided. “Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.” It cited with approval Kitchen.

Utah and Ohio promise to appeal. Utah was successful in getting a stay of the district court’s ruling. However, both decisions are well-reasoned and should stand up.

Look for more courts to strike down state bans on same-sex marriage following the logic of Windsor.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.