And Utah Makes 18. Wait… What?!?

Yesterday as I was leaving the gym, I received a phone call from my boyfriend (herein “BF”) which, to the best of my recollection, went as such:

Me:  Hello.

BF: Have you heard the good news out of Utah?

Me (not understanding what possible good news could come out of Utah):  What good news?

BF: A judge struck down their marriage ban.

Me:  Holy [expletive]!  What?!?

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Yesterday, Judge Robert J. Shelby, a federal trial judge in Utah, struck down that state’s constitutional amendment banning marriage.  The opinion in Kitchen v. Herbert is nice to read, in no small part due to the many judicial raspberries blown in the direction of Supreme Court Justice Antonin Scalia, whose shrill dissents in Romer, Lawrence, and Windsor, belie his own deeply felt homophobia.

It is important to recognize that this is the continued aftereffects of Windsor.  I say it a lot, and I mean it every time.  This is the most important American civil rights case since Brown v. Board of Education, and the ramifications are just beginning to be felt.

The decision went into effect immediately as the Court did not issue a stay.  As such most counties began to issue marriage licenses right away.  The state is asking the Tenth Circuit Court of Appeals for an emergency stay, but by this point a number of same-sex couples have already gotten married.  Should a stay be granted (or even if it is not), the events of yesterday create several questions in the immediate future.  How will Utah process legal same-sex marriages from other states?  Will the federal government recognize these new Utah marriages without Supreme Court imprimatur?  If so, will it continue to recognize these marriages should the Tenth Circuit either (a) issues a stay or (b) overturn Judge Shelby’s opinion?  Would those marriages even be legal if the opinion is overturned?  Is it possible that the federal government will recognize these marriages as valid next year and not the year afterwards?  If so, would that mean for taxes, health insurance, immigration rights, etc.?  Would a green card that was issued for a same-sex spouse be cancelled?

I ask these questions because most of the press coverage I have seen has focused on the momentousness of the occasion (Utah?!?!) rather than the practicalities of the case.  Which in a way is great because it gives me something fresh to write about.  And there is a lot to write about.  Kitchen v. Herbert, which will be Herbert v. Kitchen in the Tenth Circuit, is an extremely important case for a single, solitary, simple reason.  It is the first federal case post-Windsor to strike down a state ban on marriage equality.  Not the first ever, of course.  Concurrent with Windsor was the Prop 8 case, Hollingsworth v. Perry.  The difference between Kitchen and Perry is that the California state government refused to defend the case, and thus the Supreme Court could dodge Perry‘s central issue–the constitutionality of same-sex marriage bans–in favor of standing.  Utah’s state government will defend this to the end, which means Kitchen‘s final destination is most likely the Supreme Court.  I suspect that it will be before the Supreme Court in the 2014-15 term; mark your calendars.

The Kitchen decision came down quickly because it was a grant of a motion for summary judgment for the gay and lesbian plaintiffs.  If you have been reading this blog, this might sound familiar.  It should.  A few months ago, a trial judge in New Jersey also granted summary judgment and ordered the state to issue marriage licenses to same-sex couples.  She too refused to stay her decision.  The Christie Administration’s appeal of the denial of stay resulted in an epic judicial smack down from state Supreme Court.  Officially the Supreme Court did not reach the merits of the case (whether New Jersey law required complete marriage equality).  Nevertheless, a unanimous Court told the Administration that they would lose and lose big.  The Administration withdrew the appeal.

I said it then, and I will say it now.  Granting a motion for summary judgment is a big deal because it means denying one side the right to a trial.  Summary judgment effectively means that the case is so one-sided, a trial is a waste of resources.  The fact that a state constitutional amendment (passed by popular referendum no less) was struck down through summary judgment is particularly shocking.  Even the Prop 8 case went to trial.  But in a post-Windsor world, everything has changed.  (I should note though, that there will be trials coming up, including one in Michigan where summary judgment was denied.)

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The actual legal reasoning in the case is quite strong, although I would have preferred a better Equal Protection ruling (“rational basis with bite” needs to be retired to the Constitutional Law dustbin), but at least there was an Equal Protection ruling in favor of the plaintiffs.  Mark Joseph Stern noted on Slate that the ruling out of New Mexico from the day before is much stronger, although that one was based on state law.

The real meat of the Kitchen decision comes from the Due Process analysis, which is a consideration of the right to marriage.  As such Loving v. Virginia, the aptly-monikered case that struck down bans on interracial marriage, is the controlling precedent.  The Court swept aside (finally) Baker v. Nelson from the 1970’s.  Given all the changes in the laws since Baker, it is amazing to me that anyone would still think that case is good precedent.

One by one, Judge Shelby shot down all of the state’s arguments.  Same-sex couples are not seeking a new right; marriage is not just about controlling procreation; tradition is not a good enough reason to deny a fundamental, individual right; marriage equality will not harm children and it will not stop heterosexual couples from marrying.  The parade of horribles marched past an unreceptive crowd.

Two days ago, I indicated that it was time for the federal courts to get involved.  I had no idea though that just one day later a federal court would strike down one of the most ardently anti-equality amendments in one of the most staunchly conservative states.  This is the beginning of the flood.  From here on in, the federal courts will strike down these marriage bans one by one, until Windor‘s implicit promise, full marriage equality, is granted by the Supreme Court.

17 And DC

As of today, New Mexico has marriage equality thanks to its (unanimous) state Supreme Court.  Previously, New Mexico, thanks to a divided legislature, had no laws whatsoever about marriage equality.  That made New Mexico unique in the country.

This decision was not entirely unexpected.  Oral argument suggested which way the Justices were leaning and an earlier decision against a (I think) photographer who refused to photograph a ceremony for a same-sex couple was a tacit acknowledgement that the Court believed in protecting the rights of New Mexico’s LGBT minority.  It is also important to remember that it was the county clerks who forced this case in the first place.

It is important to recognize that this case is yet another direct result of Windsor–and yet another example proving that Windsor is perhaps the second most important civil rights case in US history after Brown v. Board of Education.  Once the US Supreme Court handed down Windsor, the clerk of Santa Ana county began issuing marriage licenses.  Other clerks followed suit (either based their own interpretation or by court order).  All the clerks asked the state Supreme Court for review.

Prior to November 2012, six states (and DC) offered marriage equality to same-sex couples.  Now there are 17.

In truth, it only gets harder from here.  Most of the remaining states have a constitutional amendment of some kind banning marriage equality.  Only Pennsylvania, Wyoming, West Virginia, and Indiana have laws rather than constitutional amendments that ban same-sex marriage and none of those states would make for an easy legislative victory.  (In Indiana, activists have their hands full trying to prevent a constitutional amendment to ban same-sex marriage.)  Oregon has a ballot initiative next May to overturn its amendment, but for the most part now it is time for the federal courts to get involved.

It is also important to recognize that 21 states (and DC) offer marriage, civil unions, or domestic partnerships to same-sex couples.  As the federal courts decide these cases, that number will grow.  Those who oppose marriage equality no longer have federal legislative options at their command thanks to Windsor.  Which means that to stop same-sex marriages federally, they need two-thirds of both Houses of Congress and three-quarters of the states to adopt it.  That ship has sailed.  New Mexico is the latest proof.