Observations on the Tenth Circuit’s Decision in Kitchen v. Herbert

State-level marriage equality: a foregone conclusion?

State-level marriage equality: a foregone conclusion?

A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Last week, in Kitchen v. Herbert, the Tenth Circuit Court of Appeals became the first federal appellate court to weigh in on the constitutionality of state-level marriage bans.  The opinion, authored by Judge Lucero and joined by Judge Holmes, does some very good things—first and foremost, advancing the cause of marriage equality (which is obviously not a “good thing” in everyone’s view, but is in mine).

The opinion also performs an important service in beginning to articulate a principled rule for framing the fundamental rights inquiry–guidance that is sorely needed in the law of equal protection.

If the opinion has any shortcomings, they lie in: (1) leaving the sex discrimination argument on the table; (2) not making the most of Judge Lucero’s concern with the harm marriage bans impose on children; and (3) misconstruing the doctrine of unconstitutional animus.

Putting All the Eggs in the Strict Scrutiny Basket

One striking feature of the Tenth Circuit’s decision is that it eschews the approach taken by many lower courts in analyzing marriage equality against the backdrop of the tiers-of-scrutiny framework.  Specifically, a number of lower courts have considered and favorably decided arguments for heightened scrutiny (based on either a suspect classification or fundamental rights analysis, and sometimes both), only to go on to apply rational basis review and conclude that marriage bans fail even under that deferential standard.  This approach covers all the bases, and creates a record supporting affirmance on appeal even if the appellate court does not agree that marriage bans merit heightened scrutiny.  In the world of judicial behavior, this is playing it safe.

The Supreme Court for its part declined to consider arguments for heightened scrutiny in United States v. Windsor, as well as in its two other gay rights decisions, Romer v. Evans and Lawrence v. Texas. Instead, the Court concluded (explicitly in Romer, but only implicitly in Windsor and Lawrence) that it need not consider arguments for heightened scrutiny because the laws at issue failed even the lowest level of scrutiny, rational basis review. (As is well known, the Court did not really apply rational basis review in these cases, but some unacknowledged, more rigid form of scrutiny. However, this is a discussion for another time.)

Judge Lucero takes a different tack in Kitchen.  First, he directly engages the fundamental rights argument for heightened scrutiny; second, he declines to address alternative arguments for heightened scrutiny; and third, he does not consider whether Utah’s marriage ban would survive under rational basis review as a “back-up” or alternative basis for the decision.  Indeed, the judges’ comments at oral argument seemed to suggest that they all believed that plaintiffs could prevail only if heightened scrutiny was applied.

Thus, Judge Lucero takes the unusual step of putting all the eggs in the strict scrutiny basket. If the Supreme Court reviews the case, it will either have to agree with the fundamental rights analysis or take a path not considered by the federal appellate court. In other words, Judge Lucero does not provide the Court with multiple options for affirmance—he did not play it safe.

Deciding How to Frame the Fundamental Rights Inquiry

Perhaps the most significant contribution of Judge Lucero’s thoughtful, if somewhat rambling, opinion is the analysis of whether marriage bans implicate the fundamental right to marriage.

On one level the point seems obvious, but courts have answered this question in the negative by concluding that the traditional, fundamental right to marriage extends only to traditional—that is, heterosexual—marriage. Under this reasoning, to conclude that marriage bans implicate a fundamental right would require recognizing a new fundamental right to same-sex marriage. And because same-sex marriage does not pass the fundamental rights test—such rights must be deeply rooted in the Nation’s history and tradition—this argument would necessarily fail.

As I have written about previously, this approach to framing fundamental rights commits the same error as the Court’s reviled 1986 decision in Bowers v. Hardwick. There, the Court asked “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy”—a question posed in such a way that it insists upon its own answer. Only seventeen years later, in Lawrence v. Texas, the Court properly rephrased the inquiry as whether the Constitution confers upon all persons a right to privacy in intimate relations.

But while Lawrence properly criticized Bowers for defining the right at issue too narrowly, it did not announce a clear rule that would guide future courts in the proper framing of the fundamental rights inquiry. Was it strictly a matter of “narrowness,” or was it a matter of referring to the historically excluded group in articulating the right?

Following up on strong questioning at oral argument, Judge Lucero tackles this issue head on, beginning with the observation that marriage is a well-established fundamental right and one belonging to all individuals. Thus, in Loving v. Virginia, the question was not whether there was a fundamental right to interracial marriage, or whether interracial couples in particular enjoyed a fundamental right to marriage. Indeed, had that been the inquiry, it would have to have been answered in the negative, given the ubiquity of anti-miscegenation laws in the United States at the time. There is no sense in which interracial marriage was deeply rooted in this Nation’s history and tradition. Quite the opposite.

Judge Lucero further notes how in Zablocki v. Redhail, “[t]he right at issue was characterized as the right to marry, not as the right of child-support debtors to marry.” As the Judge phrased the issue at oral argument, the Court does not “parse” fundamental rights based on who is asserting access to them.

Finally, Judge Lucero points to the attributes that the Court has said make marriage fundamental—emotional support, public commitment, spiritual significance and personal dedication—and determines that same-sex couples have the same interest in these qualities as opposite-sex couples.  (This parallels to some extent Judge Walker’s excellent analysis of the nature of marriage in Perry v. Schwarzenegger.)

From this discussion the following principle emerges: “[I]n describing the liberty interest at stake, it is impermissible to focus on the identity or class-membership of the individual exercising the right.” This is a good starting point for formulating a rule to guide future courts in framing the fundamental rights inquiry.

Skipping Sex

The central holding in Kitchen is stated in a way that seemed to recognize that marriage bans constitute discrimination on the basis of sex:

A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Specifically, this language directly parallels the language of Loving, where the Court posed the issue as follows:

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

And yet Judge Lucero does not go on to analyze sex discrimination as an alternative—and perhaps less controversial—basis for applying heightened scrutiny. This despite Judge Holmes’ astute questioning on the subject at oral argument.

In my view, marriage bans constitute sex discrimination on two levels: first, in that they rely on facial sex classifications (and indeed, must do so to accomplish their objective); second, in that marriage bans are frequently defended by reference to explicit sex-role stereotypes about parenting roles.

On this point, Judge Lucero acknowledges the State’s argument that its “ban on same-sex marriage is justified by gendered parenting preferences,” which was premised on the essentialist assertion that “men and women parent children differently.”

But the Judge does not take this observation to its logical conclusion: that marriage bans are a form of sex discrimination that must be subject to intermediate scrutiny.

A Missed Opportunity to Elaborate on the Rights of Children

Like Justice Kennedy in Windsor before him, Judge Lucero in Kitchen recognizes that marriage bans harm children as a factual matter, but does not take the further step of acknowledging that this provides an independent legal basis for striking down such laws.

Judge Lucero acknowledges that “nearly 3,000 Utah children are being raised by same-sex couples” and that,

These laws deny to children of same-sex couples the recognition essential to stability, predictability, and dignity. Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers.

It is patently, constitutionally impermissible to punish children based on moral disapproval of the conduct of their parents. Once you acknowledge that children are being raised by same-sex couples, and that marriage bans inevitably deprive those children of rights, benefits, and status, you have an independent basis for striking such laws that does not require the reviewing court to approach controversial issues like suspect classification or fundamental rights analysis.

The Dance of Animus 

Finally, Judge Lucero alludes to, but does not directly engage, the issue of unconstitutional animus.  But his allusions are telling.

At the very outset, the opinion candidly observes that Utah legislators and citizens enacted statutory and constitutional marriage bans because “they felt threatened by state-court opinions allowing same-sex marriage.”

Later, Judge Lucero cites a seminal animus case, City of Cleburne v. Cleburne Living Center, for the proposition that “negative attitudes toward the class at issue” are not a permissible basis for drawing legal distinctions between groups.

But at the end of the opinion, Judge Lucero addresses the State’s “concern that a ruling in plaintiffs’ favor will unnecessarily brand those who oppose same-sex marriage as intolerant,” and emphasizes that the decision is not meant to in any way disparage the legislators and citizens who supported the marriage bans.  This dictum invokes the notion that invoking the legal concept of animus is tantamount to labeling your opponent a bigot–a notion that is being promoted by certain members of the Court (especially Justice Scalia and Chief Justice Roberts) as well as certain scholars.

Courts are uncertain about the meaning of unconstitutional animus, and are tending to equate the concept with extreme notions like bigotry. This view is simply incompatible with the Court’s animus precedent, including Cleburne itself.


2 responses to “Observations on the Tenth Circuit’s Decision in Kitchen v. Herbert

  1. “Courts are uncertain about the meaning of unconstitutional animus, and are tending to equate the concept with extreme notions like bigotry”

    Well…if the shoe fits.

    • The tricky thing is that if we equate animus with bigotry, then eventually that becomes the legal standard, and laws can be struck down on this basis only if there is extreme bigotry behind them. But bigotry is easy to hide, and majorities can impose significant burdens on minorities without necessarily being bigoted.

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