Issues Raised in Oral Argument in Kitchen v. Herbert


On Thursday, April 10, a panel of the Tenth Circuit Court of Appeals heard oral argument in Utah’s same-sex marriage case, Kitchen v. Herbert.  You can read my assessment of the district court’s opinion in the case here.

One of the undeniable lessons of the argument is that the implications of the Supreme Court’s decision in United States v. Windsor are far from clear.  Following are the key questions raised by the parties’ arguments and the judges’ questions:

(1) Does Windsor stand for the proposition that, per principles of federalism, the states’ traditional authority to define marriage trumps an individual’s right to equal protection of the laws?

This was the primary argument advanced by Gene Schaerr, the talented attorney representing the State of Utah.  In my view, the argument clearly fails.  First, the same question was squarely addressed by the Court’s 1967 decision in Loving v. Virginia.  There the Court held that, while the states have authority over the institution of marriage, that authority remains subject to the requirements of the federal Equal Protection Clause.

Further, to say that Windsor was primarily a case about federalism and state sovereignty is to mischaracterize the reasoning in that case.  Justice Kennedy, writing for the majority, looked at the states’ traditional authority to regulate marriage to make the point that Congress’ effort to impose a federal definition of marriage through the Defense of Marriage Act (DOMA) was an “unusual” form of discrimination, thus requiring the Court to carefully consider the justifications for the law (that is, apply something slightly more stringent than rational basis review).

In other words, “unusual” laws like DOMA trigger suspicion of discrimination undertaken for its own sake, which triggers the “careful consideration” level of scrutiny.  (This was the explanation of the doctrinal significance of Windsor provided by Peggy Tomsic, counsel for plaintiffs in the case–a more coherent explanation than that provided by any scholar or jurist to date.)  The primary feature of this level of scrutiny is that it shifts the burden to the state to prove that there is a real, legitimate interest served by the law that overcomes the presumption of invalidity.  Under traditional, non-heightened rational basis review, the burden is on the plaintiff to prove the absence of any conceivable legitimate interest served by the law–a difficult burden indeed.

Thus, the point about federalism in Windsor was subsumed within a larger equal protection analysis, and does not negate or really exist on the same level as the Court’s determination that laws banning same-sex marriage violate equal protection because they harm same-sex couples and their children in both tangible and intangible ways.

One may rightly ask whether state laws defining marriage as a heterosexual institution can be considered “unusual” in the same way as DOMA.  Tomsic, who did a truly masterful job arguing on behalf of plaintiffs, pointed out that Utah’s laws might also be considered “unusual” in that there were two state statutes and a constitutional amendment all aimed at banning same-sex marriage, and further making certain that no marriage-like rights would be extended to same-sex couples, ever.  Thus, a certain level of legislative overkill might be another form of evidence indicating that a law is of an “unusual” character.

(2) Are bans on same-sex marriage a form of gender discrimination subject to intermediate scrutiny?

Judge Holmes pursued this line of questioning particularly astutely, although it was unclear whether counsel for the State of Utah fully appreciated Judge Homes’ point.  In essence, to refute the claim that bans on same-sex marriage are a form of gender discrimination, Utah relied on an “equal application” theory–yet another argument that had been soundly rejected by the Supreme Court decades earlier in Loving.

As is well known, that historic case addressed whether the State of Virginia’s anti-miscegenation laws (refusing to recognize and criminalizing marriages between whites and people of other races) violated the Equal Protection Clause.  The State of Virginia argued that the Equal Protection Clause did not even apply to the challenged law, because the laws applied equally to prohibit both whites and blacks from marrying individuals of the other race.  It relied on racial classifications, but did not subordinate one race to the other.

The Court rejected this argument, determining that, because the law made the ability to marry dependent on race (that is, because the law relied on facial race classifications), it enacted race discrimination and was subject to strict scrutiny under the Equal Protection Clause, regardless of the supposed “equal application” of the prohibition.

The State of Virginia’s argument in Loving–that a law containing facial classifications but that applied equally to both groups created by the classification was not subject to equal protection scrutiny–is identical to the argument forwarded by the State of Utah in Kitchen, except that the classification at issue here is gender as opposed to race.  But this distinction is immaterial to the proposition at hand.  Following the logic of Loving, courts reviewing such bans on same-sex marriage should subject the challenged laws to intermediate scrutiny–the level of scrutiny reserved for gender classifications.  Notably, with rare exceptions, application of this form of heightened scrutiny typically results in the challenged law being invalidated.

(3) Does the fact that bans on same-sex marriage undeniably harm the children of same-sex couples serve as an independent basis for invalidating such laws?

Judge Lucero expressed an obvious concern for the manner in which bans on same-sex marriage affected the children of same-sex couples.  This concern has precedent in Windsor, where Justice Kennedy focused extensively on the fact that DOMA harmed the children of same-sex couples.  Specifically, under DOMA, the children of same-sex couples were denied myriad tangible benefits associated with federal recognition of the family unit, and further suffered dignitary harms as a result of the federal government’s proclamation that their families were less worthy of recognition than families headed by opposite-sex couples.

It is undisputed–even by counsel for the State of Utah–that bans on same-sex marriage harm the children of such unions, as a factual matter.  More than that, as my colleagues and I argued in our amicus brief in Windsor, discriminating against children because of the conduct of their parents violates established equal protection principles as a matter of law.  The Tenth Circuit could strike Utah’s marriage ban on this basis alone.

(4) What is unconstitutional animus?

I have been ringing the bell on the issue of unconstitutional animus for quite a while now.  The doctrine–although powerful–was under-theorized before the Court’s decision in Windsor and remains under-theorized after Windsor.  Indeed, the federal district court in Utah determined that the Supreme Court had provided insufficient guidance on the doctrine, such that it refused to apply it.  The persistent confusion over animus was further manifest in the Tenth Circuit oral argument.

Specifically, there was a spirited debate between Judge Kelly and Tomsic about the nature of animus.  Judge Kelly appeared committed to the view (shared by Justice’s Scalia et al.) that to allege the presence of animus is to accuse your opponents of bigotry.  Tomsic disagreed, characterizing animus as a “constitutional term of art” that describes a law’s improper purpose or function–something that can be determined from the face of the law without additional evidence or the need for a trial.

Along these lines, the dialogue between Judge Kelly and Tomsic also raised the question of whether animus is properly determined as a question of law versus a question of fact, with Tomsic taking the former position and Kelly taking the latter.  This makes sense, as the more vigorous understanding of animus advocated by Tomsic (and the proper understanding of animus, in my view), can be discerned by examining the text and objective function of the law, whereas the narrow view of animus as a “fit of spite” would require evidence of subjective intent on the part of the law’s proponents–evidence that is difficult if not impossible to obtain.


At the end of the day, the views of the Tenth Circuit judges on the validity of Utah’s ban on same-sex marriages corresponded with fundamental beliefs about the validity of same-sex relationships and whether it is permissible for majorities to express moral disapproval of such relationships by denying rights and benefits to those couples and their children.

Many thanks to my colleagues Kyle Velte and Catherine Smith for discussing the case and these ideas with me.


3 responses to “Issues Raised in Oral Argument in Kitchen v. Herbert

  1. Pingback: Lessons from Oral Argument in Bishop v. Smith | Pollvogtarian·

  2. Pingback: A Post-Schuette Course Correction: Same-Sex Marriage and the Rights of Children | Pollvogtarian·

  3. Pingback: Observations on the Tenth Circuit’s Decision in Kitchen v. Herbert | Pollvogtarian·

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