This past Friday, December 20, 2013, Judge Robert J. Shelby of the United States District Court for the District of Utah struck down that state’s prohibition against same-sex marriage. There are several notable features of the opinion.
(1) THE SUPPORTING ROLE OF JUSTICE SCALIA. Interestingly and somewhat amusingly, Judge Shelby extensively quoted the dissents of Justice Scalia–a vehement opponent of same-sex marriage–from the Lawrence v. Texas and United States v. Windsor decisions, emphasizing that Scalia’s views supported the outcome in the Utah case. In both instances, Justice Scalia warned that the majority opinion in essence mandated nationwide recognition of same-sex marriages. While Justice Scalia undoubtedly meant to invoke a parade of terribles with his predictions, Judge Shelby–apparently without irony–treated the dissenting Justice’s words not as doomsday rhetoric, but as a reasonable and accurate interpretation of the consequences of these ground-breaking decisions. As a result, you have a number of passages where the district court judge “agrees with Justice Scalia” on points that Scalia would be loathe to adopt were he writing in the majority.
(2) LOVING LOVING. Another noteworthy aspect of the opinion is that, unlike the Supreme Court in Windsor and many of the lower courts addressing the issue, Judge Shelby relied heavily on the Court’s 1967 decision in Loving v. Virginia, which struck down state anti-miscegenation laws under equal protection principles. At first blush, Loving seems like an obvious candidate for controlling precedent regarding marriage equality issues. But many have characterized the decision as being primarily about race discrimination and therefore conceptually and doctrinally inapplicable to the case of same-sex marriage. But Judge Shelby strode boldly into the breach and made a compelling analogy.
(3) . . . AND LOVING TRADITIONAL EQUAL PROTECTION DOCTRINE. Further, while the Supreme Court in Windsor avoided applying any of the traditional equal protection doctrines to the same-sex marriage issue, Judge Shelby applied virtually all of them:
- He concluded that marriage was a fundamental right (which is relevant both for due process and equal protection analysis) based on Loving and a long line of Supreme Court cases to the same effect. Significantly, he rejected the contention that plaintiffs in the case were asking the court to recognize a new fundamental right to same-sex marriage. Judge Shelby stressed that marriage is a fundamental right for all people, not just heterosexuals. In connection with this conclusion Judge Shelby thoroughly analyzed the historical and contemporary meanings of the institution of marriage, and determined that its attributes were equally significant to committed same-sex couples as to committed opposite-sex couples. Because Utah’s prohibition against same-sex marriage implicated the fundamental right to marriage, the laws were subject to strict scrutiny, which they could not survive.
- Judge Shelby further concluded that heightened scrutiny was appropriate because prohibitions against same-sex marriage relied on sex classifications, which are established as quasi-suspect, such that laws relying on them trigger intermediate scrutiny. In so doing, Judge Shelby correctly rejected the argument by the State of Utah that intermediate scrutiny was triggered only by laws that imposed differential burdens on the basis of sex. This was not the case with the prohibition against same-sex marriage, because men and women were equally burdened by an inability to marry a partner of the same sex. Judge Shelby noted that this contention directly paralleled the State of Virginia’s defense of its anti-miscegentation laws, and must fail for the same reason.
- Judge Shelby also raised the possibility that such laws discriminated on the basis of sexual orientation, which could possibly be deemed a suspect or quasi-suspect classification itself, but declined to consider the issue because the Tenth Circuit had previously held to the contrary.
- In addition, Judge Shelby raised but declined to consider the possibility that Utah’s laws were based on unconstitutional animus. In essence, he declined to apply the doctrine because the Court has provided insufficient guidance on how the doctrine operates–in particular regarding the relationship between animus and rational basis review and what it means for a law to enact “discrimination of an unusual character.” This supports the contention that the Supreme Court, and in particular Justice Kennedy, have done a disservice to advocates and lower courts alike by failing to define the contours of the doctrine of unconstitutional animus. Interestingly, Judge Shelby later noted that the Utah laws in essence enacted private bias and that this was not a rational basis for the laws–but he apparently did not see this holding as related to the doctrine of animus.
- Ultimately, to cover all possible bases, Judge Shelby determined that even if heightened scrutiny were not available, the laws could not survive rational basis review in any case.
(4) WHENCE JUDICIAL RESTRAINT? Some students of constitutional law may question whether Judge Shelby’s scatter shot approach is in conflict with the notions of judicial restraint and constitutional avoidance. On this point, the politics of appellate review must be kept in mind. One can read Judge Shelby’s opinion as an effort to provide the Tenth Circuit with a menu of reasoning options if the appellate court is inclined to affirm.
Which raises the question: On what basis might the Tenth Circuit affirm, if any?
There is great political risk in affirming the district court’s conclusion that prohibitions against same-sex marriage implicate the traditional, fundamental right to marriage, such that these laws must be subject to strict scrutiny. This is because such a holding would open the door to a wave of challenges to state marriage regulations, including prohibitions against bigamy. (And the bigamy question appears to be ripe for adjudication. Just days before the same-sex marriage decision, another federal judge in Utah held that, while the state could limit marriage to one man and one woman and thus refuse to officially recognize polygamist marriages, it could not prosecute a man for bigamy simply because he maintained marriage-like relationships with multiple women.)
Similarly, there is political risk in declaring that sexual orientation is a suspect or quasi-suspect classification, such that laws relying on sexual orientation classifications must always withstand heightened scrutiny. The potential for backlash is twofold. First, there is the potential backlash against the idea that sexual minorities are “equal” to racial minorities in terms of the history of discrimination and political marginalization suffered.
Second, there is the potential backlash against the move to expand the number of suspect or quasi-suspect classifications. The Court has not recognized a new suspect or quasi-suspect class in over three decades. The slippery slope threatens. If sexual minorities are a protected class, then what other classes should be recognized and protected in a similar manner?
Finally, it does not appear that the Tenth Circuit could affirm Judge Shelby’s rational basis analysis without adopting a non-traditional version of the standard. Under traditional rational basis review, the burden is on the equal protection plaintiff to prove the absence of any conceivable legitimate state interest. Here, however, it appears that Judge Shelby erroneously placed the burden on the State to provide affirmative evidence of a rational basis. (Judge Shelby faulted the State for being “unable to articulate a specific connection between its prohibition of same sex-marriage and any of its stated legitimate interests” and further cited the State’s failure to “present any evidence” on the point. While I believe that rational basis review should place the burden of proof on the state in equal protection cases, as a descriptive matter that is not the current state of the law–at least not officially.)
The Tenth Circuit could turn to the doctrine of animus, a doctrine that the district court avoided, but it would have to decipher the precise contours of the doctrine–a difficult task given the current state of the Court’s precedent in this area.