Utah’s Same-Sex Marriage Decision

by Norris Law Group on February 27, 2014

12990851_sIn December 2013, Judge Shelby of the U.S. District Court for the District of Utah made a landmark ruling in the same-sex marriage debate. The case is Kitchen v. Herbert. The Plaintiffs are three gay and lesbian couples who wish to marry, but are unable to do so because the Utah Constitution prohibits same-sex marriage. The regulation of marriage has traditionally been the power of the states. However, that regulation must comply with the Constitution of the United States. The question the court must address is whether Utah’s current definition of marriage is permissible under the Constitution. This article is a boiled down version of the court’s decision.[1]

The History of Amendment 3

In 1977, the Utah legislature amended the portion of the Utah Code detailing which marriages were null and void to include “between persons of the same sex.” Utah Code §30-1-2(5). In 2004, the Utah legislature passed a section entitled the Marriage recognition policy. This policy states that the state will only recognize the legal union of a man and woman as marriage. Furthermore, that the state will not recognize any law creating a legal status, right, benefit, or duty substantially equivalent those granted to man and wife upon those who are not married in the eyes of the state. Utah Code §30-1-4.1. In that same year, the voters of Utah were allowed to vote on a proposed amendment to the Utah Constitution. This proposed amendment stated that: “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” Utah Constitution Article 1, §29. This Amendment was known as Amendment 3, which was passed with 66% of the vote and put into effect on January 1, 2005.

Since 2003, every state has either legalized same-sex marriage or passed a constitutional amendment or other legislation to prohibit same-sex marriage. The Federal Government has been involved in the same-sex marriage debate over the past few decades. The Defense of Marriage Act (DOMA) was passed in 1996, which allowed states to refuse to recognize same-sex marriages from other states and prevented federal recognition of same-sex marriage. In Windsor v. United States, the U.S. Supreme Court found that section 3 of this law was unconstitutional.

Effect of the U.S. Supreme Court’s Decision in United States v. Windsor

The Windsor case invalidated section 3 of DOMA, which included the language that a “legal union [is] between one man and one woman as husband and wife.” The majority of the Court declared that it was unconstitutional because it violated the 5th Amendment. Both the State of Utah and the Plaintiffs argue that Windsor is in their favor. The State emphasized that the Supreme Court stated that it is the states’ historic and essential authority to define the marital relation and that regulation of domestic relations is an area that has long been a virtually exclusive authority of the states. The Plaintiffs argue that Windsor is based on the 5th Amendment, which protects an individual’s right to liberty. They emphasized that the 5th Amendment prohibits the federal government from differentiating between same-sex and opposite-sex couples. The 14th Amendment prohibits the individual states from making this same distinction.

The essential argument is states’ rights versus individual rights—an argument not addressed by the Supreme Court in Windsor. However, the Supreme Court addressed this argument in other cases. In those cases, the Court has found that the Fourteenth Amendment requires that individual rights have the priority over states’ rights, when the two interests conflict.

Baker v. Nelson Is No Longer Controlling Precedent

In 1971, two Minnesota men brought a lawsuit claiming that Minnesota was required by the constitution to allow them to marry. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The Minnesota Supreme court found that denying marriage to same-sex couples did not violate the Equal Protection or Due Process Clauses. The United States Supreme Court dismissed the case on appeal for “want of a substantial federal question.” There have been several relevant doctrinal developments since this case: sex was held to be a quasi-suspect classification (Craig v. Boren, 429 U.S. 190 (1976), Fronterio v. Richardson, 411 U.S. 677 (1973)); the Court recognized that the Constitution protects against the discrimination of individuals based on their sexual orientation (Romer v. Evans,517 U.S. 620 (1996); and states may not “demean the existence of gay men and lesbians or control their destiny by making their private sexual conduct a crime (Lawrence v. Texas, 539 U.S. 558 (2003).”

The Windsor Court knew that the ruling would come ahead of several lawsuits in both state and federal courts regarding a state’s ability to prohibit same-sex marriage. A previous case, Perry v. Hollingworth was not ruled on by the Supreme Court because the petitioners lacked standing for the appeal. The Court did not dismiss the case for lack of a federal question. Due to the U.S. Supreme Court’s reasoning in Windsor and Perry, the court finds that the issue in this case presents a substantial question of federal law and should not be dismissed.

Amendment 3 Violates the Plaintiff’s Due Process Rights

Utah has authority to regulate and define marriage, but it must do it in a way that does not interfere with an individual’s constitutional rights. It is the role of the courts to determine which of the individual rights are protected by the Constitution and decide whether the State’s definition and regulations of marriage interferes with those rights.

The right to marry is not specifically mentioned in the Constitution, but is protected under the Due Process Clause. The Supreme Court stated that marriage is the “most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190 (1888). Thirty-five years later, the Court recognized that the right to marry, establish a home, and bring up children is a liberty protected by the Due Process Clause. Meyer v. Nebraska, 262 U.S. 390 (1923). The Court has repeatedly and consistently decided that a person must be free to make personal decision relating to marriage without “unjustified governmental interference.” With the importance of marriage as a fundamental right, the Supreme Court has not hesitated to invalidate state laws when they interfere with an individual’s rights.

The State argues that Amendment 3 does not violate the Plaintiff’s right to marry because they may still marry a person of the opposite sex. However, a person’s choices about marriage involve the right to liberty that is protected by the Fourteenth Amendment. The State does not contest that the Plaintiffs cannot develop the type of bond necessary to sustain a marriage with a person of the opposite sex. It is obvious that if the Plaintiffs are not allowed to marry someone of the same sex, then they are forced to remain unmarried. The effect of Amendment 3 is that gay and lesbians in Utah are denied the right to marry.

The State emphasizes Supreme Court cases that link the importance of marriage to procreation. However, this is not the defining characteristic of marriage. The State failed to recognize that many same-sex couples are in the position of raising a child, through adoption or surrogacy. There are several important attributes besides procreation that exist in marriage; such as emotional support and public commitment. These attributes are applicable to same-sex couples as much as opposite-sex couples.

The State argues that because same-sex marriage has only recently been allowed by some states, it cannot be a fundamental right. Rather, what the Plaintiffs seek is to establish a new right. Like the case of Loving v. Virginia, where interracial marriage was deemed unconstitutional and the Court decided that individuals could not be prohibited from their right to marry due to their chosen partner’s race; the Plaintiffs ask the court to decide that the State cannot prevent them from marrying someone due to the sex of their chosen partner.

The Constitution is not so rigid that it mandates the same outcome even when its underlying principles operated on a new set of facts that were previously unknown. It is not that the Constitution has changed, but our knowledge of what it means to be gay or lesbian. The Plaintiffs are able to develop a committed, intimate relationship with a person of the same-sex while failing to do so with a person of the opposite-sex. This is something the court cannot ignore and an understanding that both the court and State must adapt to.

In Lawrence v. Texas, the Court recognized that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and that “persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. 478 U.S. 186 (1986). This decision removed the only ground—moral disapproval—on which the State could have relied on to distinguish the rights of gay and lesbian individuals from heterosexual individuals. There is no legitimate reason that sexual identity should prevent someone’s fundamental right to liberty—which protects the right to marry and make choices about marriage and family. “The Plaintffs have a fundamental right to marry that protects their choice of a same-sex partner.”

The State may pass a law that restricts a person’s fundamental right if it is “narrowly tailored to serve a compelling state interest.” The Plaintiffs are ordinary citizens who wish to marry the persons they love. The State of Utah has not demonstrated a rational or compelling reasons why the Plaintiffs should be denied their right to marry. Therefore, Amendment 3 violates the Plaintiffs’ due process rights under the Fourteenth Amendment.

Amendment 3 Violates the Plaintiff’s Right to Equal Protection

To determine if there is an Equal Protection Violation, the court looks to see if the challenged law involves a fundamental right. If it does, then it can only be upheld if it is “narrowly tailored to serve a compelling state interest.” Amendment 3 is unconstitutional because it fails to meet this burden. Even without this burden, the Amendment would be unconstitutional for other reasons.

Utah’s Duty to Recognize a Marriage Validly Performed in Another State

Utah’s laws violate the rights of same-sex couples in Utah. Not only those couples wishing to be married, but those already lawfully married under the laws of another state. Both of which Utah refuses to recognize.


The Utah court concluded that Amendment 3 perpetuates inequality rather than protecting or supporting families, and that while the State has an interest in protecting the family, the Plaintiffs’ desire to declare commitment and support to each other is a sign of strength of marriage in society, not its downfall. The court found that the State of Utah failed to show that opposite-sex marriage will be affected in any way by same-sex marriage. Furthermore, the US Constitution protects the Plaintiff’s fundamental rights, which include the right to marry and have the marriage recognized by their government.

Attorney Graham Norris and his associates at the Norris Law Group serve the residents of Utah County and throughout Utah in the area of divorce. Contact them today at 801-932-1238 or online for a free consultation. In the next installment, Coach Kim discusses how encouragement can make a big difference in your marriage.

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