Federal Judge Strikes Down Utah’s Ban On Same-Sex Marriage

A victory for same-sex marriage in an unlikely place.


A Federal District Court Judge in Utah issued an opinion late yesterday striking down that state’s ban on same-sex marriage in a ruling that, legally speaking, is arguably the most far-reaching since a California based Federal Judge struck down Proposition 8 three years ago:

Salt Lake County began issuing marriage licenses to jubilant same-sex couples on Friday, hours after a federal judge ruled that Utah’s amendment barring same-sex marriage violated the United States Constitution.

The decision, by Judge Robert J. Shelby of United States District Court, ordered Utah to immediately cease enforcement of its laws restricting marriage to a man and a woman. Gov. Gary R. Herbert condemned the decision and said he was trying to determine “the best course to defend traditional marriage within the borders of Utah.”

The attorney general said the state would request a stay of the order pending an appeal.

Dahnelle Burton-Lee, chief deputy clerk for Salt Lake County, said she was called back from vacation to deal with the crowds that showed up as news of the decision spread. “We’re pretty slammed right now,” she said, with some 15 couples waiting for their licenses. “And they keep walking in the door.”

She said that the district attorney had authorized her office to proceed “until or unless we’re told otherwise.”

Seth Anderson of Salt Lake City posted progress reports on Twitter, with pictures of his license and the wedding certificate as he and his partner, Michael Adam Ferguson, married.

“Me and my new husband!!” he wrote. “My polygamous Mormon great grandparents would be so proud!”

Utah, home of the Mormon Church, is one of the country’s more conservative and religious states. But if Judge Shelby’s ruling is upheld, it will become the 18th to permit same-sex marriage, along with the District of Columbia. The decision came one day after the New Mexico Supreme Court ruled that same-sex couples have the right to marry, and follows a year of legal and legislative victories for gay rights advocates.

“The court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law,” Judge Shelby, appointed by President Obama, wrote in a 53-page decision. “The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.”

State courts in Connecticut, Iowa, Massachusetts and New Jersey, as well as New Mexico, have required recognition of same-sex marriage. But only once before, in California, has a federal court voided a state constitutional amendment barring such marriages that had been adopted by a popular vote.

Utah adopted its restrictive marriage amendment in 2004, after the Legislature passed laws that, together with the amendment, were declared unconstitutional on Friday.

More than 30 states have passed amendments or laws restricting marriage to a man and a woman. Buoyed by a United States Supreme Court decision in June that declared parts of the federal Defense of Marriage Act unconstitutional, advocates have filed dozens of lawsuits in both state and federal courtschallenging bans.

But the Supreme Court has not ruled on whether state amendments limiting marriage to a man and a woman are inherently unconstitutional.

Given that Utah is the headquarters of the Church Of Jesus Christ of Latter-Day Saints (or, as most people refer to them, the Mormons) and generally considered one of the most conservative states in the Union, this struck many people as something of a surprise. Indeed, of all the states that were considered the likely candidates for the 18th state where same-sex marriage would become legal Utah was probably not on anyone’s radar, certainly not mine. Even more surprising, though, is the manner in which some state officials have reacted to the decision in the hours since it was handed down, as reported by The Salt Lake City Tribune:

As news of the ruling broke, hundreds of people descended on county clerk offices around the state to request marriage licenses. At the Salt Lake County Clerk’s Office, a First Baptist pastor was on hand to conduct wedding ceremonies. Michael Ferguson, 32, and Seth Anderson, 31 were the first same-sex couple to receive a license there and be married.

Hours later, the Utah attorney general’s office appealed the decision to the 10th Circuit Court of Appeals in Denver and also filed a motion asking Shelby to stay the ruling while it seeks to defend Utah’s Amendment 3.

“The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit,” it said.

The appellate court handles cases for Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah. The New Mexico Supreme Court affirmed the right to same-sex marriage on Thursday.

Utah Gov. Gary Herbert released a statement that said he was “very disappointed an activist federal judge is attempting to override the will of the people of Utah” and said he would work with Acting Attorney General Brian L. Tarbet “to determine the best course to defend traditional marriage within the borders of Utah.”

Meanwhile, any marriage licenses issued before a possible stay is granted will be valid, according to a plaintiff’s attorney. But the state disputes that in its appeal.

Among those married in Salt Lake County on Friday afternoon: Kody Partridge, 47, and Laurie Wood,one of the three couples named as plaintiffs in the lawsuit that challenged Amendment 3.

Since it’s unlikely that either Judge Shelby or the Tenth Circuit Court of Appeals is likely to rule on a stay request before Monday, there’s a good probability that hundreds if not thousands of gay and lesbian citizens of Utah will be legally married in the ensuing period, and their status will be a matter that the Court will eventually have to deal with. The same phenomenon occurred in California in the time period after the State Supreme Court declared that the state must recognize same-sex marriage and the passage of Proposition 8. Ultimately, it was determined that those marriages must be recognized as valid. This situation, of course, is slightly different than what happened in California, and the time period before a stay is issued, assuming that it is, will be much shorter, but the legal issues will be the same. Of course, if neither Shelby nor the Tenth Circuit grant the request for a stay, then marriages between same-sex partners will be permitted to go forward until a Court rules otherwise. My personal guess, though, is that we are likely to see a stay come from one or both Courts given the issues involved and the potential for legal confusion in the future should the ban ultimately be upheld on appeal.

Moving on the merits of the case, Lyle Denniston digs into the opinion and notes that Judge Shelby’s opinion draws heavily from Justice Anthony Kennedy’s ruling in United States v. Windsor, the Supreme Court case that struck down Section Three of the Defense Of Marriage Act:

While the Supreme Court in the case of United States v. Windsor explicitly avoided ruling on whether a state ban on same-sex marriage was valid, the Salt Lake City judge interpreted the decision to mean precisely that.  The important “federalism concerns,” about a state’s control of marriage rights, “are insufficient to save a state-law prohibition that denies the [three couples suing in this case] their rights to due process and equal protection of the law.”

Along the way toward his ultimate conclusion, Judge Shelby ruled that the issue of state authority to outlaw same-sex marriage is no longer controlled by a one-line 1972 Supreme Court decision in a Minnesota case, Baker v. Nelson.  Opponents of same-sex marriage have often relied on that ruling, which said simply that such a ban did not raise a “substantial federal question.”

The Utah judge said a summary ruling like that from the Supreme Court is no longer binding on lower courts, “when doctrinal developments indicate otherwise.”  He said that there have been several such developments, citing several decisions on gender equality and on equal rights for homosexuals.

While some other courts have found that the Baker precedent still determines the issue, Judge Shelby said that all of those rulings had been issued before the Supreme Court ruled in theWindsor case last June.  In that decision, the Court found that the Defense of Marriage Act’s provision that all federal benefits keyed to marriage were limited to opposite-sex marriages violated already-married gay and lesbian couples’ right to equality.

Although the Windsor decision did not answer the issue before him, Judge Shelby wrote that “its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development.”  The Supreme Court, he noted, foresaw that its decision in that case would lead to a number of lawsuits raising the very issue of a state’s authority to ban same-sex marriage.

In the wake of the Windsor decision, “there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial federal question,” the Utah jurist said.


The judge’s conclusion rested on both a finding that the ban violated same-sex couples’ right to liberty under the Due Process Clause, and a finding that it violated their rights to equality under the Equal Protection Clause.

The fact that Judge Shelby, who was appointed by President Obama and has sat on the U.S. District Court for Utah since September 2012, based his opinion on both the Equal Protection and Due Process Clauses of the 14th Amendment arguably makes his decision stronger and potentially less likely to be overturned on appeal. On the Due Process side, Shelby essentially ruled that gays and lesbians, like every other American citizen, have a liberty interest in being able to get married. This mirrors one of the central holdings of Loving v. Virginia, the 1967 Supreme Court case that struck down laws against interracial marriage. In that case, Chief Justice Earl Warren wrote:

 Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Addressing the due process issue in this case, Judge Shelby concluded as follows:

The Fourteenth Amendment protects the liberty rights of all citizens, and none of the State’s arguments presents a compelling reason why the scope of that right should be greater for heterosexual individuals than it is for gay and lesbian individuals. If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections. The court’s holding is supported, even required, by the Supreme Court’s recent opinion concerning the scope of protection that the Fourteenth Amendment provides to gay and lesbian citizens. In Lawrence v. Texas, the Court overruled its previous decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and held that the Due Process Clause protected an individual’s right to have sexual relations with a partner of the same sex. 539 U.S. at 578. The Court ruled: “The Texas [sodomy] statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. While the Court stated that its opinion did not address “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” id., the Court confirmed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and held that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574 30
Case 2:13-cv-00217-RJS Document 90 Filed 12/20/13  (emphasis added).


The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals. The only other distinction the State has attempted to make is its argument that same-sex couples are not able to naturally reproduce with each other. But, of course, neither can thousands of opposite-sex couples in Utah. As a result, there is no legitimate reason that the rights of gay and lesbian individuals are any different from those of other people. All citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and the intimate choices a person makes about marriage and family.

The court therefore finds that the Plaintiffs have a fundamental right to marry that protects their choice of a same-sex partner.

On the Equal Protection side of the equation, Judge Shelby concluded his examination of the arguments put forward by the State of Utah to justify Amendment 3 with this:

In its briefing and at oral argument, the State was unable to articulate a specific connection between its prohibition of same-sex marriage and any of its stated legitimate interests. At most, the State asserted: “We just simply don’t know.” (Hr’g Tr., at 94, 97, Dec. 4, 2013, Dkt. 88.) This argument is not persuasive. The State’s position appears to be based on an assumption that the availability of same-sex marriage will somehow cause opposite-sex couples to forego marriage. But the State has not presented any evidence that heterosexual individuals will be any less inclined to enter into an opposite-sex marriage simply because their gay and lesbian fellow citizens are able to enter into a same-sex union. Similarly, the State has not shown any effect of the availability of same-sex marriage on the number of children raised by either opposite-sex or same-sex partners.

In contrast to the State’s speculative concerns, the harm experienced by same-sex couples in Utah as a result of their inability to marry is undisputed. To apply the Supreme Court’s reasoning in Windsor, Amendment 3 “tells those couples, and all the world, that their otherwise valid [relationships] are unworthy of [state] recognition. This places same-sex couples in an unstable position of being in a second-tier [relationship]. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S. Ct. at 2694; see also id. at 2710 (Scalia, J., dissenting) (suggesting that the majority’s reasoning could be applied to the state-law context in precisely this way). And while Amendment 3 does not offer any additional protection to children being raised by opposite-sex couples, it demeans the children of same-sex couples who are told that their families are less worthy of protection than other families.

The Court also ruled, in connection with complain claims brought in the case by a  second set of Plaintiff’s that Utah is also required to recognize the validity of same-sex marriages performed in other states for the same reasons that he reasons that it must recognize and allow same-sex marriages inside the state. Though he doesn’t address this argument at length, this is interesting because it would appear to, at least indirectly, find that Section Two of the Defense of Marriage Act, which was unaffected by the Windsor decision an allows state to refuse to recognize same-sex marriages performed in sister states. Since I haven’t seen any of the pleadings in the case, it’s unclear if the DOMA Section Two was argued by either party but it raises a significant side issue in the marriage equality debate that will likely be addressed on appeal. A ruling that even states that don’t recognize same-sex marriage within their borders must recognize ones performed in states where it is valid would have a significant impact on the future direction of the debate on this issue going forward.

Judge Shelby’s ruling on both equal protection and the due process issue is very similar to the one handed down by Judge Vaughn Walker in 2010, which I wrote about at length when it was released. This is especially true when it comes to Equal Protection and how the ruling is likely to be handled on appeal. In both cases, JuThatdges Walker and Shelby ended up reviewing the respective statutes before them under a standard known as “rational basis” review, which is the lowest basis for review under the Clause and typically one that statutes are able to meet easily. Essentially, as long as the state can argue that there exists some rational basis for the fact that the law treats seemingly similarly situated people differently, in this case saying that there is some rational basis for saying that opposite sex couples can get married but same-sex couples cannot. In both opinions, the respective Judges rule, after examining the evidence and argument presented to the Court, that there is no rational basis for barring same-sex couples from getting married.

For purposes of appeal, this is potentially significant because the Court of Appeals is generally required to treat as established the factual conclusions that a trial court Judge reaches, and is only permitted to set them aside if there is some manifest error in those conclusions. Given that, the odds that Judge Shelby’s opinion will be set aside would seemingly be fairly long. At the same time, though, the Tenth Circuit has apparently not ruled in recent years on the issues raised in this case so it’s hard to say how they’d rule in this case. For what it’s worth, the ten Judges on the Court are equally divided between Clinton or Obama appointees and George H.W. Bush or George W. Bush appointees. The ten Senior Judges, any one of which may end up being appointed to the three Judge panel that will rule on the appeal, meanwhile, consist mainly of Judges appointed by President Reagan. Who will sit on the panel, and how they’ll rule, is, at this point, anyone’s guess.

Finally, it’s worth noting that the fact that this case will be appealed by Utah state officials, it will not end up suffering from the same standing issues that Hollingsworth v. Perry did. That means that, when it does eventually make its way to the Supreme Court, and assuming that the Court accepts the case for appeal, the Justices will find it hard to dodge he central issue in the case on whether or not there is a Constitutional right for gay couples to marry. That event is still at least a couple years away at this point, but it does suggest that we’re not as far away from a final ruling on this manner as some people may think.

Here’s the opinion:

Kitchen et al v. Herbert et al by dmataconis

FILED UNDER: Gender Issues, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Stonetools says:

    An Obama appointed judge, huh? Thanks again, President Obama!
    Going to the merits , the State’s arguments against same sex marriage are so threadbare that it is really hard to imagine they will be upheld on appeal or at the Supreme Court. I think you might see Judge Kennedy finish his work on gay rights by writing a 5/4 decision upholding this decision in a couple of years.


  2. HarvardLaw92 says:


    I haven’t read the ruling in depth yet, but on face, the arguments from the state seem to the same threadbare ones that were advanced in Hollingsworth, and all of those are essentially predicated in animus. Given that this same scenario is likely to be repeated in other states in the near future, perhaps with similar rulings, probably with at least one opposite, I can’t see SCOTUS punting on this issue again. Eventually they are going to be squarely faced with Loving II.


  3. michael reynolds says:

    Thanks, Doug. I’ve been waiting for your analysis.

    It’s accelerating. The fastest-moving major social change I’ve ever seen is actually accelerating. Amazing.


  4. Tyrell says:

    A few weeks ago the court did away with part of the polygamy laws. Now gay marriage is legal. I guess next will be that cross dressers can marry – themselves.


  5. PJ says:

    More of this, please:

    Cheers erupted as the mayor of Salt Lake City led one of the state’s first gay wedding ceremonies in an office building about three miles from the headquarters of the Mormon church.

    State Sen. Jim Dabakis, chairman of the Utah Democratic Party, was one of the first to get married in Salt Lake City with his longtime partner, Stephen Justesen.

    “Do you, Jim, take Steven, to be your lawfully wedded spouse?” the mayor asked shortly before a celebration erupted.


  6. Gray Peterson says:

    But if Judge Shelby’s ruling is upheld, it will become the 18th to permit same-sex marriage, along with the District of Columbia.

    Wrong. If the 10th Circuit affirms in full Shelby’s ruling, Utah will be state 18 and the following states will be number 19, 20, 21st, 22nd and 23rd:


    It’s possible the 10th can pull what the 9th Circuit did and attempt to narrow the Kitchen case, but that would be extremely difficult. The reason the Perry 9th Circuit decision was able to accomplish that was the existence of the marriages by the state Supreme Court ruling (In re Marriage cases in 2008), a situation where marriage is granted by the state and then taken away.

    Here, there is not that situation because the only time marriages were allowed was due to the federal court decision itself, not the involvement of state court legalization and then the people yanking it. It’s a pure marriage equality challenge.


  7. Laurence Bachmann says:

    Momentum for SSM is building incredibly fast but I’m not convinced of national victory in only a few years. Kennedy had the opportunity to overturn California’s Prop 8 and was loathe to declare a state referendum by its citizens to be invalid. Kennedy sounded positively reverential when talking about the Ca. referendum results, which is disturbing

    Many states deny SSM precisely by this process. And what is to stop other very conservative states from attempting it in a last ditch effort? The 14th Amendment reads exactly the same now as it did in the California case and Kennedy didn’t use it to join in and agree. What will be different about Kennedy or the Equal Protection clause in 1 or 5 years time?

    Kennedy seems quite happy to let the issue change incrementally, occasionally nudging it forward striking down blatantly homophobic legislation (sodomy laws) or laws clearly exclusionary DOMA ) but generally, let’s putter along and see where it takes us. The guy is no Earl Warren. I don’t think he is, either temperamentally or philosophically likely to author a sweeping, Pickering
    type decision.


  8. HarvardLaw92 says:

    FYI – the 10th Circuit denied Utah’s request for an emergency stay in this matter.