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SUPREME COURT OF THE UNITED STATES

Kitchen v. Herbert

May 19, 2014

I

This case presented before the Court concerns an alleged violation of the right to due

process and equal protection under the Fourteenth Amendment of the United States Constitution.

This violation is said to have occurred as a direct result of two statutory prohibitions on same-sex

unions, and an amendment to the Utah Constitution prohibiting same-sex marriage. The statutory

prohibitions are Section 30-1-2 and Section 30-1-4.1 of Utah Code. Section 30-1-2, passed in

1977, claims marriages “between persons of the same sex” are “prohibited and declared void.”

While Section 30-1-4.1, passed in 2004, claims:

(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.

(b) Except for the relationship of marriage between a man and a woman recognized pur-suant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equiva-lent to those provided under Utah law to a man and woman because they are married.

November 2, 2004 the amendment, known as Amendment 3, was submitted for referendum dur-

ing the general election. Amendment 3 was successfully passed, receiving 66% of voter support.

The language of Amendment 3 is as follows:

(1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or

given the same or substantially equivalent legal effect.

The Plaintiffs challenging, Amendment 3 and the two statutory prohibitions, are three gay and

lesbian couples residing within the state of Utah. Derek Kitchen & Moudi Sbeity are two males

currently dating and living together in Salt Lake City. They sought a marriage license from the

Salt Lake County Clerk’s office in March 2013, but were denied. Karen Archer & Kate Call are

two women who were legally married in the state of Iowa. The couple reside in Wallsburg and

are not legally recognized as married in the state of Utah. Laurie Wood & Kody Partridge are

two females currently dating and living together in Salt Lake City. The couple sought a marriage

license from the Salt Lake County Clerk’s office in March 2013, but were also denied.

II

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When considering the constitutionality of laws and their alleged violation of fundamental

rights, the Court has historically approached deliberation in two ways: substantive due process

and equal protection. The Court’s application of substantive due process has resulted in an estab-

lishment of unenumerated fundamental rights that were derived from past interpretations of “lib-

erty” within the Due Process Clause. The fundamental right to privacy, for instance, was estab-

lished in Griswold v. Connecticut (1965). This right was then applied and upheld in Roe v. Wade

(1973), Planned Parenthood v. Casey (1992), and Lawrence v. Texas (2003). The most relevant

right to this current case, has been established out of both substantive due process and equal pro-

tection: the fundamental right to marriage.

The Court recognized and established a fundamental right to marry under the Due

Process Clause in Meyers v. Nebraska (1923). This right to marriage has consistently been up-

held as integral to an individual’s right to liberty and privacy. While marriage was established as

a federally protected right in Meyers, the Court also recognized the concerning implications that

such a right might have when placed in the context of federalism. The delicate balance between

federal and state power is a struggle that has required the historic mediation of this Court since

Marbury v. Madison (1803).

The Court no doubt observes a state’s right to enforce and regulate its own set of laws

that are responsive to the inhabitants residing within its borders. The deference given to states by

this Court, however; is not without limit. Any state law that violates an individual’s protected

constitutional right has been struck down by this Court. State laws that seek to restrict fundamen-

tal rights from being enjoyed by specific classifications of people, are also struck down. Such

laws are considered to be in violation of the Equal Protection Clause. The Court has established a

three tiered standard for determining such violations, known as judicial scrutiny. When consider-

ing whether a law violates the Equal Protection Clause, the Court seeks to apply either rational

basis, intermediate scrutiny, or strict scrutiny.

When the Court considers rational basis, a law must be shown to rationally be related to a

legitimate state interest. This Court has historically applied rational basis to cases involving in-

come San Antonio Ind. School District v. Rodriguez (1973), age Murgia v. Massachusetts (1976),

and disability Cleburne v. Cleburne Living Center (1985). Intermediate scrutiny requires a law to

be related to an important government interest. This Court has historically applied intermediate

scrutiny to cases concerning gender as in Craig v. Boren (1976). When the Court applies strict

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scrutiny, a law must be narrowly tailored to further a compelling government interest. The Court

applies strict scrutiny when a law targets a “suspect class.” Strict scrutiny has established three

qualifications that must be met: 1) the class has suffered a long history of discrimination, 2) the

law targets a class on the basis of immutable qualities, and 3) the class has no meaningful politi-

cal power. The Court has historically only granted suspect classification under strict scrutiny on

the basis of race as in Loving v. Virginia (1967), Shelley v. Kraemer (1948), Burton v. Wilming-

ton Parking Authority (1961), and Brown v. Board of Education (1954).

Having found no legitimate or rational reason for the State’s laws to deny same-sex cou-

ples the fundamental right to marriage, the US District Court of Utah has since ordered Section

30-1-2, Section 30-1-4.1, and Amendment 3 unconstitutional.That court has ruled in favor of the

Plaintiffs, confirming that the two statutory prohibitions and Amendment 3 were in direct viola-

tion of the Plaintiffs’s rights to due process and equal protection under the Fourteenth Amend-

ment of the United States Constitution.The State has appealed the US District Court of Utah’s de-

cision, and seeks the jurisdiction of this Court.

The Court must now determine whether the state of Utah’s regulation of marriage, pro-

hibiting and excluding same-sex couples, is in compliance with the Constitution of the United

States. This Court, when considering Section 30-1-2, Section 30-1-4.1, and Amendment 3, must

evaluate whether a violation of the Due Process Clause or Equal Protection Clause has occurred.

Furthermore the Court must determine and interpret the level of scrutiny these laws require, as

dictated by past precedent.

III.

The State concedes the Plaintiffs’ fundamental right to marriage, as established in Meyer

& Loving. The State does not find Section 30-1-2, Section 30-1-4.1, or Amendment 3 in conflict

with this fundamental right to marriage. The State argues that under both statutory prohibitions

and Amendment 3 the Plaintiffs are still allowed to marry persons of the opposite sex. The Plain-

tiffs counter that this argument fails to take into account the deep-seated and immutable quality

of their sexual orientation. The Plaintiffs asserts that sexual orientation is not a choice, therefore

the Plaintiffs will be unable to form any genuine intimate bond with a partner of the opposite sex.

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The Plaintiffs feel then that Section 30-1-2, Section 30-1-4.1, and Amendment 3 effectively de-

nies gay and lesbian individuals the fundamental right to marriage.

The State also offers three reasons in defense of Amendment 3, as follows: 1) the Plain-

tiffs are not qualified to enter into a marriage; 2) the Plaintiffs are seeking a new right; and 3)

history and tradition have not recognized a right to marry a person of the same sex. The State ar-

gues that an essential qualification of marriage is the ability to procreate. The State reasons that

its interest lies in maintaing the survival and existence of society, procreation is essential to this

interest. Plaintiffs counter this procreation interest by pointing to instances of opposite-sex cou-

ples who cannot procreate, due to infertility or age. The Plaintiffs assert that the State would and

could not deny those couples the right to marry, and so the qualification of procreation is not

compelling.

The State’s second interest asserts that same-sex marriage is a distinct right outside of tra-

ditional opposite-sex marriage; and so this new right is not “deeply rooted in this Nations’s his-

tory and tradition.” Without a historically established precedent for same-sex marriage, the State

argues that same-sex marriage is not a fundamental right. The Plaintiffs counter by pointing to

the Court’s decision is Loving, asserting that interracial marriage was not considered a new right.

Instead the Court held that individuals cannot be prevented from exercising an established right

of marriage on the basis of race. Here too the Plaintiffs assert that they are being prevented from

exercising an established right of marriage, but on on the basis of sexual orientation.

The State’s third interest asserts that because the fundamental right to marriage has never

before been interpreted to apply to same-sex couples, the State cannot grant this right to same-

sex couples. The Plaintiffs counter with similar reasons when disputing the State’s second inter-

est. Plaintiffs argue that before Brown there was no historic precedent for desegregation. Yet, the

Court determined that a heightened scrutiny should be granted to race and a precedent was set.

Plaintiffs argue then that tradition and history are not compelling reasons to deny a fundamental

right.

IV.

This Court has heard the arguments of both the Plaintiffs and State, concerning the con-

stitutionality of Section 30-1-2, Section 30-1-4.1, and Amendment 3. The Court acknowledges

the three interests of the State: 1) the Plaintiffs are not qualified to enter into a marriage; 2) the

Plaintiffs are seeking a new right; and 3) history and tradition have not recognized a right to

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marry a person of the same sex. None of these interests are found by this Court to be persuasive

or compelling.

The first State interest qualifying procreation as essential to marriage, is not found to be

an important enough interest when restricting same-sex couples from marriage. As the US Dis-

trict Court of Utah acknowledged in its decision, the State fails to account for opposite-sex cou-

ples who are unable to naturally procreate due to infertility or age. Furthermore the decision to

procreate is one of intimacy that occurs within the sanctity of existing marriages, and does not

precede marriage itself. As was ruled in Griswold couples have a fundamental right to marriage

and privacy which includes the freedom to choose not to procreate. The Court then finds this

State interests to be in violation of the Plaintiffs’ right to substantive due process.

The second State interest asserting same-sex marriage as distinctly separate from the es-

tablished fundamental right to marriage is not at all compelling and is felt to be in violation of

the Plaintiffs’ right to equal protection. Likewise, the third State interest, claiming that because

their is no past history of the fundamental right to marriage for same-sex couples it cannot be

granted, is also in violation of the Plaintiffs’ right to equal protection. This Court points to Lov-

ing v. Virginia (1967) in order to historically demonstrate the State’s violation of the Equal Pro-

tection Clause.

As in Loving, the State considers and applies a very narrow understanding of what it con-

siders a constitutionally protected right to marriage. In this case, the State has narrowly applied a

protection of the right to marriage only to opposite-sex couples. In Loving the State also nar-

rowly applied a protection of the right to marriage, limiting its understanding to only be applica-

ble to same-race couples. The Court in Loving ruled, as it does now, that such a narrow applica-

tion of the right to marriage is unconstitutional since it discriminates on the basis of immutable

qualities. This Court dismisses the State’s assertion that same-sex couples are seeking some dis-

tinctly separate and new fundamental right, and maintains that the State is actually merely pro-

hibiting the exercise of an already established fundamental right to marriage solely on the basis

of immutable qualities -- sexual orientation.

Moreover, the Court in Loving did not consider the established tradition and history of

“racially pure” marriages to be a compelling interest when restricting fundamental rights. As in

Loving, the state of Utah is asserting that it’s established tradition and history of opposite-sex

couples is compelling enough to warrant the prevention of same-sex marriages. This Court

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would point out that before the Loving case was decided, interracial marriage had no traditional

or historic precedent within the state of Virginia.

The Court, having addressed the arguments put forth by the State, does not find a legiti-

mate or compelling interest for Section 30-1-2, Section 30-1-4.1, or Amendment 3. The Court

would now like to take this opportunity to clarify it’s application of judicial scrutiny, when deter-

mining what it considers to be the State’s violation of the Plaintiffs’ right to equal protection. The

Court would like to focus its attention on the State’s claim that Section 30-1-2, Section 30-1-4.1,

and Amendment 3 do not violate the right to marriage since gays and lesbians are still allowed to

marry members of the opposite-sex.

The State’s assertion is a complete violation of equal protection on the basis of gender

discrimination. The State, by legally permitting only opposite-sex unions, has implied a valued

preference for opposite-sex couples on the basis of gender. The Court points to Craig v. Boren

(1976) where intermediate scrutiny was applied to laws that discriminate on the basis of gender.

So too here, the Court asserts that Section 30-1-2, Section 30-1-4.1, and Amendment 3 discrimi-

nate against same-sex couples on the basis of their gender.

The Court recognizes the context of federalism that this case operates within. We con-

tinue to recognize and respect a state’s right to create, regulate, and enforce its own laws that re-

flect the values and concerns of its citizens. However the right of creating, regulating, and en-

forcing state laws by the states themselves is not without limit. When state laws are in question

of violating fundamental rights protected within the Constitution, we have reserved the right of

judicial review. The question then of whether states can ban same-sex marriage is dependent

upon whether such a ban prevents same-sex couples from exercising the fundamental right of

marriage. This Court has found that such a ban does prevent same-sex couples from enjoying the

fundamental right of marriage as protected by the Due Process Clause. The Court also finds such

state bans to be in violation of the Equal Protection Clause, since they are predicated on the dis-

crimination of gender.

We uphold, therefore, that Section 30-1-1, Section 30-1-4.1, and Amendment 3 prohibits

the Plaintiffs’ right to marriage as protected under the Due Process and Equal Protection Clause.

This Court finds no important interest that the State can put forth to justify such a violation, and

so the judgement of the US District Court of Utah is affirmed.

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It is so ordered.