Less than a month after U.S. District Robert Shelby decreed that banning same-sex marriage in the highly conservative state of Utah is unconstitutional, U.S. District Judge Terence Kern did the same thing yesterday in Oklahoma. U.S. District Judge Terence Kern ruling Both of them set up rationales that could be used in the remaining 31 states.
In Utah, Shelby referred back to the U.S. Supreme Court’s reasoning that “the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.” Kern, however, uses a simple “rational basis” protection, far lower than the required higher level of scrutiny that other courts have used. He concluded that the two lesbian couples bringing suit had suffered no stigma because they could not marry. Instead he wrote:
“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.”
In Romer v. Evans (1996) the Colorado Supreme Court struck down Amendment 2 of the state constitution that forbid protecting “those who suffer discrimination due to their sexual orientation” because the amendment violated the equal protection clause of the U.S. Constitution. That case did not move up to SCOTUS. In Windsor v. United States, (2013) the U.S. Supreme Court overturned part of DOMA, allowing the terms “marriage” and “spouse” to be also used by same-sex couples under the due process clause of the constitution’s Fifth Amendment. SCOTUS used the same clause ten years earlier when it decriminalized sex between same-sex couples in Lawrence v. Texas (2003).
The Supreme Court’s ruling less than seven months ago that created the impetus for court rulings regarding marriage equality was ambiguous: their decision failed to explain what protections that LGBT people should have. Thus Kern used Justice Anthony Kennedy’s language and tone.
The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage. It supports marriage equality in the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.
Shelby used dissenting Justice Antonin Scalia’s words when he struck down Utah’s same-sex marriage. Scalia predicted that the two successful rulings for marriage equality last summer, including Windsor, would end up legalizing nation-wide same-sex marriage. In his opinion, Shelby wrote, “In his dissenting opinion, the Honorable Antonin Scalia recognized that [legalized gay marriage] was the logical outcome of the court’s ruling in Windsor.” He then quotes from Scalia:
“In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion … is that DOMA is motivated by ‘bare … desire’ to harm couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
“The court agrees with Justice Scalia’s interpretation of Windsor. … And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it. The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.”
As Shelby did in Utah, Kern granted a stay of same-sex weddings in Oklahoma until an appeal is adjudicated. Yet 17 of the 50 states presently allow LGBT marriage, and Ohio recognizes same-sex marriages if one of the couple is dead. Litigants in over three dozen cases are challenging marriage equality bans in 20 different states. Only one-third of people in the country oppose marriage equality, down 12 percent from the 45 percent in opposition just two years ago.
Who are the judges who made these rulings? Judge Terence Kern, nominated by President Clinton, is a native of Oklahoma and a former Army reservist who easily won Senate approval. Robert Shelby is a registered Republican and former Persian Gulf War engineer. Sen. Orrin Hatch (R-UT) called him a “lawyer with an unwavering commitment to the law.” Tea Party member Sen. Mike Lee (R-UT) called President Obama’s nominee a “pre-eminently qualified” nominee who would be an “outstanding judge.” So much for the conservatives’ accusation of “judicial activism.”
Appeals from both Utah and Oklahoma will be heard by the ideologically split 10th Circuit Court of Appeals. Half of the ten judges were appointed by presidents of each party. One of President Obama’s appointees is Judge Scott Matheson Jr., a former federal prosecutor and the Mormon son of a former Utah governor.
The next few months will show whether more states will be required to recognize same-sex marriages or the U.S. Supreme Court—albeit reluctantly—dives into the fray once again.
Kern wrote, “Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.” Hopefully this argument can be used in the struggle to protect LGBT people from discrimination in marriage, jobs, housing, and the rest of our lives.