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A Lengthy Review of the Utah Oral Argument

Marriage Equality Trials

Scottie wrote a great point by point review of the argument. I won’t get to every point, but I will try to dig in a little bit. Let’s get to it…

By this time, if you are reading this particular website, you know the basic facts. But,  it is worth restating here.

The first time Utah specifically forbid same sex unions was by Legislative action in 1977. In 2004, during the height of the Bush Administration’s effort to politicize marriage equality and the proposed federal Constitutional Amendment, the Legislature tacked on two more bills. The first was to add Section 30-1-4.1 to the Utah lawbooks. It is one of your more broad gay marriage bans. It doesn’t ban personal contracts like some of the more extreme measures, but it did specifically bar civil unions or any law that would grant any marriage like benefits.

The other measure they passed was a resolution to put what became Amendment 3 on the Nov. 2, 2004 ballot. You would think the law would be enough, but Karl Rove and team were pushing marriage amendments to be placed on the ballot to boost turnout, and so the Utah Legislature complied. It passed with 65.9% of the vote, and went into force as Article I, Sec 29 in January 2005. (A side note: read the first few paragraphs of that Rove link if you want to remind yourself just how far we have come in ten years.)

So that brings us to this case. The plaintiffs are a gay male couple and two lesbian couples who have lived in Utah for a long time. (See their photo on Restore Our Humanity’s Facebook page.) Utah is their home, and they have built their families there. They have no interest in moving, and why should they?

That brings us to the main event: the application of the 14th Amendment Equal Protection clause to Utah’s marriage equality ban. Looking back to Windsor, we need to distinguish our Equal Protection clauses. In that case, the Equal Protection clause was that of the 5th Amendment, which applies to the federal government.  As Judge Shelby pointed out in his district court decision, that 5th Amendment protection aligned with the broad concept of federalism and the right of states to define marriage for themselves. That is, New York state had authorized Edith Windsor’s marriage, and the federal government should not override that.

In Windsor, these interests were allied against the ability of the federal government to disregard a state law that protected individual rights. Here, these interests directly oppose each other. The Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage. (District court decision at 5-6)

With respect to the federalism question, the 14th Amendment must in a sense overcome that question. In other words, the equal protection violation must be severe enough to demand that the federal law take supremacy over the offending state law. Like he did in Lawrence v Texas, Justice Scalia argued in his Windsor dissent that the Court’s holding would inevitably lead to courts deciding that marriage equality was required of the states as well. Ultimately, given the many decisions at the district court level going our way, he was indeed correct about the district courts. Federalism just can’t trump an offense to the 14th Amendment as blatant as something that is motivated by “bare … desire to harm” as described in Windsor. In the end, federalism can’t really trip up the case as it is outweighed by the 14th Amendment, and puts the whole ballgame on the equal protection case.

In today’s argument, the attorney for the state, Gene Schaerr, argued that Windsor was primarily a case about federalism. Judge Lucero, for his part, was having none of that. He repeatedly sparred with Shaerr on this question, remarking that Windsor, at the point in the decision was actually laid out, was specifically tied to Equal Protection:

In turning to Windsor, … Justice Scalia in his dissent really highlights this, that when the Court was speaking in Windsor about marriage, that it very clearly indicated and gave a direction that it was going to be talking about federalism. But, in fact, when it came to dispositive language of Windsor, … it directly disavowed a decision predicated on federalism, and instead turned to equal protection and due process as the deciding elements of that case. (Audio at 10:30)

Lucero goes on to state that he was not convinced by the power of federalism in that case, and Shaerr’s argument that it gave states complete dominion over marriage. Shaerr states that New York had decided on a more relationship based model of marriage, and that Utah had the power to define marriage for its own purposes.

Standard of Equal Protection review

This has been the subject of much academic speculation both before and after Windsor. Prior to Romer v. Evans, it was assumed that were really only three, somewhat distinct, levels of scrutiny. Strict scrutiny primarily applied to race and religion, intermediate scrutiny applied to gender issues, and rational basis applied to all other categories of people. Romer tweaked that by adding a fuzzy rational-basis plus test. There has to be a rational basis for the law that is connected to a legitimate government interest.

In the Supreme Court cases that have touched on LGBT issues since then, this question has been honed. At this point, Windsor is the closest thing to a controlling test. While it is based on the 5th Amendment’s equal protection clause, it can be reasonably applied here. Ninth Circuit Judge Stephen Reinhardt explained the Windsor standard pretty succinctly in a case about jury selection:

Windsor scrutiny “requires something more than traditional rational basis review.”  Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny. (SmithKline Beecham v Abbott Laboratories, at p.23)

Of course, this was a subject of today’s oral argument. The attorney for the state, Gene Schaerr led with his argument why sexual orientation should not get this heightened scrutiny. Judge Lucero then brought up Loving, and the question why the gender discrimination shouldn’t get intermediate scrutiny as race got strict scrutiny in Loving.

Shaerr sparred with Lucero on this question, with Lucero following up with the question of whether marriage is a fundamental right. Shaerr acknowledged that marriage had been treated as a fundamental right (meaning that it could be subject to a substantive due process claim and possible higher scrutiny).

The first question Peggy Tomsic got was on precisely this issue, and she stated that this court should get a heightened level of scrutiny under Windsor or as a suspect gender-based class. On the fundamental right to marry and the substantive due process claims, courts have traditionally applied strict scrutiny. The question, of course, then becomes a matter of does this fundamental nature apply to whom you get to marry as well as just the fact that you can marry.

Tomsic argues that Windsor and Romer state that where a law categorizes a group for discrimination, that rare law causes the court to take a special look at those laws to be sure the effects of those laws are not to harm the class. That standard calls for the court to review the design, purpose, and practical effect of the law, and if the class is injured, the state then has a burden to show that there is a really legitimate interest.

Generally, while Judge Kelly seemed to be fully on board with the State throughout the questioning and especially on this issue, Judges Lucero and Judge Holmes (probably) seemed inclined towards applying this heightened level of scrutiny.

The State’s Interest in Denying Marriage Equality

The state, for its part, is hoping that just the lowest rational basis standard applies and runs with that premises. The district court ruled that Amendment 3 couldn’t even survive that, but they totally, completely, entirely disagree. Judge Shelby just got the application wrong, they argue. They only need to show a plausible policy reason for the classification and that the definition furthers their interest. Of course, all of this is refuted in the plaintiff’s brief and was refuted at today’s hearing. The most basic statement of that boils down to this:

Even assuming that each of the governmental interests proffered by the State is legitimate, there simply is no rational connection between any of those asserted objectives and prohibiting same-sex couples from sharing in the protections and obligations of civil marriage. (Pl. Answering Brief p.64)

But the state has some very serious research from some very serious scientists to back up their point. Their basic point is that the state’s public interest in marriage is to encourage the creation of stable husband-wife families for children. Never mind that they had no actually serious research that showed that same gender relationships were any less stable for child development. In fact, the state’s briefs relied heavily on the work of Mark Regnerus, who has now been thoroughly discredited and forced the State to send a letter discounting his work.

Shaerr argued that while the children of same-sex couples legally married in other states would be stigmatized under Amendment 3, that Utah had the authority to do so. After all, the children of polygamists were stigmatized by the ban on polygamy. This was very quickly dismissed, and Shaerr was told that the case today was about gay marriage not polygamy.

Shaerr then turns to the state’s interests in denying marriage equality, chief among them was what the state is calling “gender diverse parenting.” In other words, the state feels that children should have both “an involved mother and an involved father.” He states that Utah feels gender diverse parenting is at least as important as racial diversity in education, an interest that the courts have agreed is legitimate.

But how does banning marriage equality advance that state interest you ask? Well, the classification is rational if the benefitted community is differently situated with respect to the right in question. Lucero asks the next logical question: Why does blocking gay marriages make it more likely that straight couples will get married?

We believe that redefining marriage in genderless terms, and moving from the man-woman definition. And the man-woman definition inherently, although subtly, conveys a message … that a mom and dad are important. And when you redefine marriage in genderless terms, you dilute that message and you dilute that norm in the law. As Profs. Hawkins and Carroll say, one of the messages to heterosexual men … is that we don’t really need you for your children because we have this alternate relationship where two women can get married and be impregnated artificially. And they can create a family without a man, and that teaches, in Justice Kennedy’s words, that gender is not that important, and that dads aren’t that important.

Just after this, Shaerr goes on to cite Maggie Gallagher, of NOM fame, that boys will not learn proper masculinity without a father. So, deep science there, don’t you know. But the next question that you would really want to ask is how is this marriage ban at all narrowly tailored to address this issue, even if you accept Maggie G.’s hypothesis.

Tomsic, in her portion of the time, argues that even if you are applying a rational basis test, the interests must really be legitimate. The rational basis test is not so weak as to allow “flimsy” rationales. Judge Kelly emphasized the important nature of federalism to Windsor, but Tomsic argues that there is no study that shows any legitimate evidence that children are harmed in same-sex couples.

Then we get to the Regnerus study, and Judge Holmes basically asked if the State had any case whatsoever at this point. The letter that State sent tried to walk back from their reliance on the study, and that left Shaerr with the argument that the State is allowed to legislate for the risk of negative effects of marriage equality.


This is a concept that has really come to the fore more recently legally. And there was quite a back and forth:

Kelly: That’s an animus argument, isn’t it. Judge Shelby didn’t find animus, and I’m struggling to see how that is applicable here. … Until 2010, nobody even thought of recognizing as a legal matter same sex marriage. So what Utah has done is validated what has been historical practice forever. How is that the same as Romer where they attempted to say that same sex couples or any on sexual orientation grounds is barred from legal relief. Those are two different things, aren’t they.

Tomsic: They are not, your honor. What the court was looking at in Romer, was what does the target to the class do? THat is, how are you differentiating between these classes of individuals, and are you differentiating to treat them unequally? ANd if that is the situation, that is a very rare type of law. And you can take about semantics, but there is no question looking at the text of Amendment 3, and the other marriage discrimination laws. The only thing those laws did was target same-sex couples, and make them unequal. None of those laws established the right to marry, gave benefits or incentives. Their only purpose and effect was to exclude same-sex couples from marriage or marriage recognition.

The conversation continues on this thread discussing the concept of animus in a back and forth until Judge Lucero intervened, and took the discussion off to the general principle of the statement that public policy cannot trump a constitutional right.


In the Oklahoma case, Article III jurisdiction is a bigger issue. The case was sent down once because of jurisdiction and for having sued only the Governor and Attorney General. In this case, the plaintiffs sued both the governor and AG, as well as a county clerk. However, Tomsic argued that the executive branch, through those two executive officials, wields more power in Utah and thus grants standing under Article III of the constitution.

While a standing decision seems unlikely, it is a remote possibility that the court could dismiss the case for lack of standing. That would likely leave Utah with marriage equality, but a lot more questions for the other states in the 10th Circuit. However, that seems more likely in Bishop, and we will probably to get a decision on the merits here.

What’s next?

First, I apologize for the rambling nature of this post. I know it is a bit long, but there are a lot of issues to be discussed and I wanted to get this up as soon as possible. If you find mistakes, by all means, let me know in the comments.

I think I would be inclined to agree with the folks on twitter and all over the web that think this will be a tight decision. It seems that Judge Lucero is on our side, and Judge Kelly is with the state. However, given his comments in argument, Judge Holmes could conceivably go either way. If he doesn’t think heightened scrutiny applies, is Utah’s flimsy “risk” to the state and sketchy nexus to that risk enough to sustain the Amendment 3 through the rational basis test? Possibly, and Judge Holmes seemed to indicate that. However, we will likely have plenty of time to debate that question over the next few months.


  • 1. Ragavendran  |  April 10, 2014 at 4:48 pm

    Lucero brought up Loving? I thought Holmes did. Maybe the audio confused me. Can somebody confirm/refute?

  • 2. Dr. Z  |  April 10, 2014 at 9:23 pm

    I thought Holmes did as well.

    I thought this was particularly significant because, although Holmes was nominated by GWB, he's the only African-American on the panel; he also denied the stay.

    Or am I confused again?

  • 3. Dr. Z  |  April 10, 2014 at 9:25 pm

    PS. I took Lucero's reference to Dred Scott as no accident. It was aimed at Holmes.

  • 4. bleubitz2014  |  April 11, 2014 at 6:35 am

    You are probably right, I was having problems differentiating on the audio file. Something weird about my speakers I think.

  • 5. Ragavendran  |  April 10, 2014 at 5:03 pm

    Great post, analyzing the arguments by category as opposed to chronology which is what is appearing in most news reports! You shouldn't have to apologize at all! I'm actually sending a link of this post out to all of my non-law-savvy friends since it is quite tutorial-like and comprehensive. Thank you!

    Here are a couple of minor typos I found:
    (1) The paragraph that begins with "We believe that redefining marriage in genderless terms…" should probably be italicized if intended to be a quote.
    (2) From the Tomsic quote: "THat" and "ANd" should be "That" and "And". Also, "you can take about semantics" should be "you can talk about semantics"

  • 6. JimT  |  April 10, 2014 at 5:03 pm

    Brian, thank you for taking the time to do this in depth post. I now have a better understanding of the different levels of scrutiny.

  • 7. USA, Utah: Analysis of th&hellip  |  April 10, 2014 at 6:49 pm

    […] Authored By Brian Leubitz – See the Full Story at Equality on Trial […]

  • 8. Terry  |  April 10, 2014 at 7:00 pm

    When did Kennedy say this:

    And they can create a family without a man, and that teaches, in Justice Kennedy’s words, that gender is not that important, and that dads aren’t that important.

  • 9. SeattleRobin  |  April 11, 2014 at 4:16 am

    Kennedy didn't say all of that. Kennedy said the law teaches part, and then the State was using that in an attempt to shore up their ridiculous argument that SSM would then teach that fathers aren't important, because hey look, two women can get married. (This is all clear in the audio, it was just kinda unclearly smooshed together in the above post.)

  • 10. Tim  |  April 10, 2014 at 7:09 pm

    Brian – please do this for the other hearings. This was a great read. Informative.

  • 11. Kirk  |  April 10, 2014 at 7:47 pm

    I read that entire NY Times article and I had to stop myself from laughing out loud when I read how putting constitutional bans on the ballot is how the republicans are expanding their base

  • 12. Ragavendran  |  April 10, 2014 at 10:03 pm

    So, I also got a chance to watch this Hangout by sltrb, which had some very experienced commentary by a former Utah Supreme Court justice:

    As I understand it, here are the possible outcomes (there may be others that I'm missing; I am not a lawyer) that could arise based on everything we have so far. Four outcomes which seem unlikely:
    (1) 3-0 Ruling overturning the district court's ruling
    (2) Dismiss the appeal for lack of standing
    (3) Remand the case to district court, ordering a trial
    (4) 3-0 Ruling upholding the district court's ruling
    Two outcomes which seem likely:
    (5) 2-1 Ruling overturning the district court's ruling
    (6) 2-1 Ruling upholding the district court's ruling

    Of the above, (1) is obviously extremely unlikely. (2) and (3) were mentioned in oral argument today, but seem unlikely. Even though (4) seems unlikely, I wouldn't at all be surprised if it turns out that the three judges agree in outcome, but differ in rationale. I envision either Lucero or Holmes authoring the majority opinion holding that Utah's ban is unconstitutional under both equal protection and due process clauses (and perhaps also that heightened scrutiny should apply), with Kelly writing separately concurring in opinion but dissenting on the due process clause and/or the scrutiny issue. (Similar to what O'Connor did in Lawrence.)

    Really, given Kelly's clean and commendable life/career, I think he'll come to the right conclusion, as have all Bush Sr. and Reagan appointees so far. I don't see him deliberately laboring long and hard (and one would have to labor long and hard to support the State's narrow and flimsy "risk"-based rationale) to author a clean and rational dissent upholding Utah's ban.

    Next week could provide new clues on what the judges are thinking. Or not 🙂

  • 13. Rose  |  April 10, 2014 at 11:39 pm

    I would agree that (1) us HIGHLY unlikely, as well as (2) and possibly even (3)……my belief is that either (4) is a possible, but NOT probable and (6) is a good probably……..I would think (5) might have been plausible had the 10th granted the Stay for the State, but seeing as they DIDN'T…..this one is also unlikely!!!

  • 14. JayJonson  |  April 11, 2014 at 7:32 am

    Thank you Ragavendran for this illuminating comment.

  • 15. Ragavendran  |  April 11, 2014 at 9:44 am

    Once again, as I'm not a lawyer, I'm not sure if the judges can rule on different portions of Amendment 3 separately. I would think it probable that all three judges can agree that Utah should recognize marriages performed in other states. So, a combination of a 3-0 limited victory on marriage recognition and a 2-1 victory for striking down Amendment 3 entirely is also a possibility. In short, I don't see Kelly, in good conscience, authoring a full blown dissent upholding the constitutionality of Amendment 3 in its entirety.

  • 16. José Merentes  |  April 10, 2014 at 10:19 pm

    This brings to my mind that Scalia never has spoken out about the "terrible" consequences he has been trying to avoid not letting the effects he describes to become real. What´s the ethical content of his warnings? Why is better for society to leave things "just as they stand now",

  • 17. The Morning Pride: April &hellip  |  April 11, 2014 at 5:35 am

    […] – It looks like two of the three judges hearing the appeal of Utah’s ban on same-sex marriage are prepared to strike it down. Here’s an in-depth look at Thursday’s oral arguments. […]

  • 18. Naomi  |  April 11, 2014 at 9:35 am

    I admit, I feel kind of bad for Utah. Not the individual people in it, just abstractly, as a state. It had to agree to ban polygamy (which at that point in time was somewhat central to the Mormon belief system) as a prerequisite for becoming a US state. Now it has to change again, again because the Federal Gov't says so. I mean, clearly marriage equality is the only moral way to go, and I'll be thrilled if this (or any other) case means my marriage is recognized in all states, but I see how with that historical backdrop it could be especially hard for Utah to make the transition.

  • 19. sfbob  |  April 11, 2014 at 11:21 am

    I understand what you're saying. It can't be fun for the state to have to change its views nor can it be fun for the LDS Church to have to either a) find a sudden revelation [as they did with polygamy and with the acceptance of African-American clergy] or b) accept that its views are no longer reflected in established law. Were I them I'd be embarrassed too; if those were my views or my choices. Of course they aren't. But I definitely get it.

    This does of course raise the interesting conundrum that we on the progressive side seem to be far better at conceiving how things might feel were the shoe on the other foot, while those on the conservative side appear incapable of doing so.

  • 20. Rick O.  |  April 11, 2014 at 11:45 am

    If Utah has a hard time it is because they have de facto a religious state, which means things are the way they are because god said so and can't change till another set of tablets appears (are we up to platinum, now?) Change? Just look at Alabama, Mississippi, and Louisiana and despair. What will save Utah from that fate is that Mormons are driven by money and see a decent education as a necessary corollary.

  • 21. palerobber  |  April 11, 2014 at 12:08 pm

    now it has to change again because the *constitution* says so, not the feds. just saying.

    as a Utahn i appreciate the (rarely found) sympathy, but i think we'll make the transition just fine. while the state does have its share of haters, i think *most* LDS adopt their leaders' views on this out of duty — their hearts aren't in it.

  • 22. Carpool Cookie  |  April 12, 2014 at 5:29 pm

    Re: "[Utah] had to agree to ban polygamy (which at that point in time was somewhat central to the Mormon belief system) "

    Polygamy is still very central to the Mormon belief system…the multiple wives are limited to being a heavenly reward now, though.

  • 23. RCChicago  |  April 11, 2014 at 9:42 am

    Wanted to add my thanks and appreciation as well. I have a hearing deficiency so listening to the audio is not much of an option for me. This—as well as Scottie's report—is extremely helpful.

  • 24. Naomi  |  April 11, 2014 at 10:06 am

    Well, there is that. I mean, I don't feel bad enough not to root for the good guys! The only "negative" consequence is that they have to pretend to be less bigoted, as a state. Not too bad, if you ask me.

  • 25. Rose  |  April 11, 2014 at 12:46 pm

    Here's an article regarding what the AG in Utah is doing:

    If this ISN'T animus towards newly married Gay and Lesbian couples……I don't know what Justice Kelly would call it!!!

  • 26. Ragavendran  |  April 11, 2014 at 1:17 pm

    Yup. And Plaintiffs in Evans v. Utah (seeking recognition of the same sex marriages performed during the 17-day window) filed a supplemental facts and analysis in support of their request for a preliminary injunction, calling out the AG's recent actions as "continuing to impose irreparable harm on Mr. Barraza and Mr. Milner."

  • 27. Sagesse  |  April 12, 2014 at 9:39 am

    Utah takes the position that their marriage amendment was overturned, but the decision was stayed. Therefore, until the case is finally resolved, the state of Utah does not recognize same-sex marriage of any kind, wherever performed… in any way… at all. In theory, refusing to permit adoption to couples whose marriages they don't recognize is consistent with this position.

    Utah has not said that the 1,300 marriages performed during their botched effort to stay the decision are not valid. Utah has vaguely suggested that those marriages might be deemed invalid… note the clever use of the passive voice… the only way those marriages would be invalidated is if Utah takes legal action to invalidate them and is successful. I personally don't think any court is going to invalidate a marriage that was legal when it was performed, but IANAL.

    Utah is going to regret its (this is getting to be a habit) botched attempt to go against these judges' adoption orders after they've been issued. It is abusive to the parents, and disrespects their children. So far as I know, it is not and has never been acceptable in the US to punish children for who their parents are… note I didn't say for their parents sins, because the parents have done nothing wrong… they are legally married, applied to adopt and the court approved it.

  • 28. Margo Schulter  |  April 11, 2014 at 6:28 pm

    One interesting point to clarify, which doesn’t change anything of significance in this excellent report, is that, strictly speaking, the Fifth Amendment itself doesn’t have an Equal Protection Clause. However, by what is called a process of “reverse incorporation,” the Equal Protection Clause of the Fourteenth Amendment (adopted in 1868) applying directly to the States, rather than to the federal government (as in Windsor), has been read back into the Due Process Clause of the Fifth Amendment of the original Bill of Rights (1791), which does constrain the federal government.

    The term “reverse incorporation” refers to the more familiar process of incorporation by which many (although not all) of the guarantees of the Bill of Rights originally applying only to the federal government have been held also to bind the States through the Due Process Clause of the Fourteenth Amendment. Specifically, this process of incorporation applies to those portions of the Bill of Rights which the Supreme Court holds to be “fundamental” to our system of “ordered liberty.” Some of these guarantees incorporated during the 1960’s as binding the States include, for example, the protection against self-incrimination; the right of an indigent criminal defendant to counsel; trial by jury in criminal cases; and the double jeopardy bar.

    The concept of “reverse incorporation” by which the Fourteenth Amendment principle of “equal protection of the laws” applies to the federal government through the Due Process Clause of the Fifth Amendment may have its source in Bolling v. Sharpe (1954). Having held in Brown v. Board of Education that the Equal Protection Clause forbids the States from segregating public schools, the Court held the values of equal protection to prohibit such segregation also in the District of Columbia, where only the Due Proces Clause of the Fifth Amendment directly applied..

    During the 1970’s, as the Court confronted the issue of sex discrimination by the federal government, this concept again came into play.

    That’s how part of the foundation was put in place for the landmark decision in Windsor, which indeed addressed the issues raised by Section 3 of DOMA as if there were an Equal Protection Clause in the Fifth Amendment itself.

    With these state marriage cases, of course, there’s no need for reverse incorporation, because the Equal Protection Clause of the Fourteenth Amendment applies directly to the States to prohibit invidious discrimination.

    My apologies if this is a bit of a digression, but the reverse incorporation concept is a fascinating one.

  • 29. Michael  |  April 11, 2014 at 7:26 pm

    Thank you for the review. It was quite helpful for me in understanding what happened in court. Now the wait will be excruciating.

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