American Bar Association
Media Alerts
Media Alerts - Kitchen v. Herbert-- 10th Circuit
Decrease font size
Increase font size
June 29, 2014
  Kitchen v. Herbert-- 10th Circuit
Case Name: Kitchen v. Herbert -- 10th Circuit

Headline: Tenth Circuit holds that right of same-sex couples to marry and have marriages recognized by the state is fundamental; state laws banning same-sex marriage violate Fourteenth Amendment right to due process.

Areas of Law: Constitutional Law

Issue Presented:

May a state deny a citizen the benefit and protection of State marital laws based on the gender of person the citizen chooses to marry?

Brief Summary:

The State of Utah passed a series of laws, including Utah Code § 30-1-2(5), which voided marriages between same sex couples, § 30-1-4.1, which provided that Utah will only recognize marriages between a man and a woman, and a constitutional amendment, Amendment 3, which added a provision to the Utah Constitution that defined marriage as a legal union between a man and woman, and stated that only marriages between a man and woman would be recognized. This Amendment was passed by voters, and became article I, section 29 of the Utah Constitution. Collectively, the laws are known as "Amendment 3."

Plaintiffs sued the Governor of Utah, the Attorney General of Utah, and Salt Lake County Clerk in Federal District Court for the District of Utah, alleging that Amendment 3 violated their rights to due process and equal protection under the law. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and requested an injunction stopping its enforcement. The district court ruled for the plaintiffs on their cross-motion for summary judgment, holding that the laws denied the plaintiffs equal protection, because it classified the plaintiffs on the basis of sex and sexual orientation.

The Tenth Circuit affirmed the decision of the district court, but found that the laws violated the plaintiff's substantive due process right, because the right to marry is a fundamental right. After finding that the right to marry was fundamental, the Tenth Circuit held that the State of Utah had provided no compelling reason for the law, and that the law was not narrowly tailored enough to meet the strict scrutiny standard necessary to overcome a substantive due process challenge. Additionally, although the issue was not raised by the parties, the court addressed the appellant's standing to challenge the ruling of the district court, because the Salt Lake County Clerk did not appeal the ruling. The majority found that the Governor and Attorney General were proper defendants to the underlying suit and did have standing to challenge the ruling.

Judge Kelly concurred and dissented in part, agreeing with the majority that the appellants did have standing to challenge the decision, but disagreeing that same sex marriage fell into the category of a fundamental right, and stating that the State of Utah had met the rational basis standard for justifying a law facing an equal protection challenge.

Extended Summary:

The State of Utah passed Utah Code Sections 30-1-2(5), 30-1-4.1, and, with the approval of voters, Amendment 3 to the Utah Constitution to ensure that same-sex marriages would not be legally performed or recognized in the State of Utah (collectively known as Amendment 3). The laws included marriages performed in other states. The laws were passed because state legislators and citizens felt threatened by state-court opinions allowing same-sex marriage.

Plaintiffs challenged the laws on the grounds that they were denied several marriage benefits afforded to opposite-sex couples, including the ability to file joint state tax returns, hold marital property, claim benefits under their partners' pension or make medical decisions when their partners become ill. Additionally, plaintiffs state that they were not afforded the "dignity, respect, and esteem" of marriage. Plaintiffs Archer and Call were married in Iowa, but the State of Utah refused to recognize their marriage.

Plaintiffs brought suit in United States District Court for the District of Utah against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County in their official capacities. Plaintiffs stated that the laws violate their right to due process under the Fourteenth Amendment by depriving them of the fundamental right to choose the person they want to marry and to have that marriage recognized. Additionally, they claimed that Amendment 3 violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs asked the court for a declaratory judgment that Amendment 3 was unconstitutional and an injunction barring its enforcement.

On cross motions for summary judgment, the district court ruled for the plaintiffs, holding that all citizens, regardless of sexual orientation, had a fundamental right to marry. Additionally, the District Court found that Amendment 3 violated the Equal Protection Clause because the laws classified citizens on the basis of sex and sexual orientation, without a rational basis. The district court permanently enjoined enforcement of Amendment 3. The Governor and Attorney General then appealed and moved to stay the district court's decision. Both the Tenth Circuit and the district court denied the stay, but the Supreme Court granted the stay pending a decision by the Tenth Circuit.

The majority first addressed the issue of standing, even though it was not raised by the parties. The court held that at least four of the plaintiffs had standing because they were unable to obtain marriage licenses from the Salt Lake County Clerk and identified harm that flowed from this denial, including financial injury. The plaintiffs proved that the County Clerk caused their injury because the Clerk denied them a marriage license and demonstrated that an injunction barring enforcement of Amendment 3 would cure the injury. Therefore, the plaintiffs demonstrated the necessary "meaningful nexus" between the defendant and the injury.

The majority then considered whether the Governor and the Attorney General had standing to challenge the district court's ruling, because the Salt Lake County Clerk did not appeal the decision. The court noted that it determined in Bishop v. Oklahoma ex rel. Edmondson, 333 F.App'x 361 (10th Cir. 2009), that Oklahoma's Governor and Attorney General were not the proper defendants in a challenge to Oklahoma's prohibition on same-sex marriage. In that opinion, the court based its decision on the fact that marriage licensing in Oklahoma was a judicial power. The district court clerk in Oklahoma was charged with issuing marriage licenses, and as such, the executive branch did not have the authority to issue a marriage license or record a marriage. In contrast, Utah marriage licenses are issued by county clerks. The Governor is charged with supervising executive and ministerial offices, like the county clerk, and as such had standing to challenge the suit. Furthermore, the Attorney General had the duty to supervise or assist county, district, and city attorneys in the discharge of their duties. Because knowingly issuing a marriage license to a same-sex couple is a misdemeanor in Utah, the Attorney General would supervise any charges filed against a county clerk who issued a marriage license to a same-sex couple. This authority, combined with the Governor and Attorney General's "willingness to exercise" their duties related to the enforcement of Amendment 3, made them appropriate defendants in this appeal. Particularly because the Attorney General is empowered to direct the Utah State Tax Commission to recognize Archer and Call's out of state marriage, Archer and Call had standing to sue the Attorney General for their injuries related to Amendment 3's non-recognition provisions. Archer and Call were able to sue the Governor for the same reason - the Governor had the ability to appoint and remove state tax commissioners from office. Therefore, by nature of their supervisory power, the Governor and the Attorney General had the requisite nexus between Amendment 3 and the injuries suffered by plaintiffs. As proper defendants to the underlying lawsuit, they had standing to challenge the district court's decision on appeal, even without the Salt Lake County Clerk.

The majority began its analysis of Amendment 3 by discussing the history of litigation regarding same-sex marriage. The court stated that Baker v. Nelson, 409 U.S. 810 (1972) was decided on a summary dismissal for want of a federal question. In Baker, the Minnesota Supreme Court upheld a ban on same-sex marriage, stating that marriage meant a union between two persons of the opposite sex, and uniquely involved procreation and child rearing. It then stated that the Fourteenth Amendment was not to be used to restructure the institution of marriage, and that there was no irrational discrimination that violated Equal Protection Clause. The majority noted that although summary dismissals are to be treated as a decision on the merits, it agreed with the district court that "doctrinal developments" found in Lawrence v. Texas, 539 U.S. 558 (2003) and United States v. Windsor, 133 S.Ct. 2675 (2013) had superceded Baker, noting that nearly every federal court since Windsor was decided has determined that Baker is no longer controlling. Because doctrinal developments had occurred since Baker, the majority determined it could make a decision on the merits of the issue. Lawrence held that individuals have the right to make intimate contact with another person, including homosexual persons. Windsor determined that the federal government does not have the right to deny recognition of a marriage license issued by a state to a same-sex couple. Although the court recognized the federalism concerns set forth in Windsor and stressed by the appellants, the majority stated that the federal government has the power to make determinations that affect marital rights, including insurance proceeds, immigration, and Social Security benefits. Furthermore, the court stated that Windsor framed the issue as a question of essential liberty rather than a federalism issue.

Next, the majority explained the standards of review to be used. A grant of summary judgment is reviewed de novo, and a permanent injunction is reviewed for an abuse of discretion. Summary judgment is granted to a moving party only if the evidence viewed in the light most favorable to the non-moving party entitles the moving party to judgment as a matter of law. In order to obtain a permanent injunction, a plaintiff must show "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued will not adversely affect the public interest." The court only reviewed the merits aspect, because the appellants only challenged the merits.

The majority then determined whether the right to marry an individual of the same sex qualified as a fundamental liberty. A fundamental liberty must be deeply rooted in the Nation's history and "implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed." The majority noted that the right to marry itself is unquestionably a fundamental right.

Appellants argued that the right to marry only applied to opposite-sex marriage, and that same-sex marriage was not deeply rooted in the Nation's tradition because it had only recently been considered by citizens that two same-sex individuals might aspire to marry. The majority responded to this argument by showing that the court had always discussed the right to marry as a broad right, pointing to Loving v. Virginia, 388 U.S. 1 (1967), which held that banning interracial marriage was unconstitutional, and Zablocki v. Redhail, 434 U.S. 374 (1978), which held that a state cannot ban individuals in arrearage of child support obligations from marrying. Appellants asserted that Loving and Zablocki were distinguishable because they both discussed opposite-sex couples, and only opposite-sex couples are procreative. Appellants pointed to Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), and Carey v. Population Servs. Int'l, 31 U.S. 678 (1977), for evidence that the Supreme Court had discussed the rights of marriage and procreation together. The majority responded to this by stating that the Supreme Court has discussed the fundamental right to marry and the right to procreate as separate. The majority noted that Washington v. Glucksberg, 521 U.S. 702 (1997), which appellants relied on heavily, described Loving as a marriage case, where it described Skinner as a procreation case. Furthermore, the majority stated that Turner v. Safley, 482 U.S. 78 (1987), invalidated the concept that marriage is fundamental because of procreation potential. In Turner, the Supreme Court considered the right of inmates to marry, and invalidated a law barring inmates who had not procreated from marrying. The majority stated that the issue in Turner was framed broadly - not as the right of "inmate marriage," but whether the fact of incarceration made it impossible for inmates to benefit from marriage. Turner stressed that the importance of marriage is based on personal aspects, including emotional support and public commitment. The majority then stated that this holding is consistent with other Supreme Court decisions where the court has discussed the freedom to marry, including the freedom to choose one's spouse, in Cleveland Bd. of Educ. V. LaFleur, 414 U.S. 632 (1974), Hodgson v. Minnesota, 497 U.S. 417 (1990), Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) and Carey.

Appellants argued that the personal elements inherent in the institution of marriage, such as the freedom to choose one's spouse, to decide whether to have children, and to publicly proclaim commitment to one another are not the principal interests the State has in regulating marriage. The majority found that these personal elements reinforce the childrearing family structure and support the dignity of each person. It then noted that the dignity factor was emphasized in Windsor.

The majority then noted the similarity of Windsor to the difficulties faced by plaintiffs Archer and Call, who were married in Iowa but could not have their marriage recognized in Utah. It stated that the fundamental right to marry included the right to remain married.

Next, the majority stated that the appellants' assertion that the right to marry is fundamental because of its connection with procreation is undermined by the fact that individuals have a fundamental right to choose not to procreate, citing Eisenstadt v. Baird, 405 U.S. 438 (1972), which stated that individuals have the right to choose whether to bear a child regardless of if they are married or single, and Griswold v. Connecticut, 381 U.S. 479 (1965), which recognized the right of married couples to use contraception. Furthermore, the court noted that nearly 3,000 children in Utah were being raised by same-sex couples, even though same-sex couples are banned under Utah law from jointly adopting children. The majority pointed to this information as evidence that childrearing is exercised by both opposite-sex and same-sex couples, and even single individuals.

The majority also noted that biological relationships are not determinative of the existence of a family, citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977). It noted that Windsor stated that restrictions on same-sex marriage humiliated children of same-sex couples and made it difficult for them to understand the integrity of their own family. The laws, as stated in Windsor, discouraged those children from being considered members of a family.

Appellants stated that the Tenth Circuit would have to define marriage in order to find that there is a right to marriage, and that marriage, by definition, excluded same-sex couples. The majority responded to this by stating that the Supreme Court has described the right to marry in broad terms, and stated that a claimed liberty cannot be framed as being exercised by a specific class of persons. The court noted that before Windsor, many courts had found that that the right to marry could not be exercised by same-sex couples, but the majority stated that it is impermissible to focus on class-membership of the individual exercising a right when determining a liberty interest. The court rejected the appellants' assertion that plaintiffs are excluded from marriage by definition as circular, because many states do permit same-sex marriage, and because appellants' reliance on the definition of marriage is not meaningful. The majority again pointed to Windsor, where the Court invalidated Section 3 of DOMA, which limited the federal definition of marriage to a legal union between a man and woman. The majority then noted that definitions are not immune from constitutional scrutiny.

The majority then noted that Lawrence precluded the narrow definition of the fundamental right sought by appellants. In Lawrence, the Court rejected its previous holding in Bowers v. Hardwick, 478 U.S. 186 (1986), where the court framed the liberty right as the right of homosexuals to engage in sodomy. In Lawrence, the Court recognized that there was no history of a right to engage in homosexual sex, but stated that the characterization of the right in Bowers was too narrow. The majority then noted that Lawrence alluded to marriage, stating that individuals in a homosexual relationship may seek autonomy for the personal decisions related to marriage, just as heterosexual people do.

The majority then stated that the Fifth and Fourteenth Amendments have not changed, but that as knowledge and understanding of what it means to be gay or lesbian changes, the liberty of those who were previously excluded should be recognized.

Having determined that the right to marry is a fundamental liberty, the majority then analyzed whether Amendment 3 was "narrowly tailored to serve a compelling state interest." The court considered the four justifications for Amendment 3 - that the laws furthered the state's interest in "(1) 'fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children'; (2) children being raised by their biological mothers and fathers - or at least by a married mother and father in a stable home'; (3) 'ensuring adequate reproduction'; and (4) accommodating religious freedom and reducing the potential for civic strife.'"

The majority stated that the first three interests did not meet strict scrutiny. The common thread between the first three claims is the link between marriage and procreation. However, the majority found that the law is under-inclusive, because the recognition of valid marriages does not differentiate between couples that procreate and couples that do not. The elderly, infertile, and those who do not wish to have children or choose to adopt are still free to marry and have out-of-state marriages recognized in Utah. The majority further illustrated its point by demonstrating that marriages between first cousins in Utah are predicated on the inability to have children. The majority also noted that several district courts had rejected similar attempts to ban same-sex marriage. The majority also explained that under-inclusiveness also invalidated the prohibition on marriage by child-support debtors in Zablocki, because the challenged provisions did not limit the incurrence of financial commitments of those debtors other than through marriage. The law in Eisenstadt, which prohibited distribution of contraceptives to unmarried persons, was also under-inclusive on the grounds that using contraceptives is immoral. The majority also noted that a law basing marriage on a couple's ability and willingness to procreate also raised its own set of concerns. Finally, in response to appellant's statement that banning non-procreative individuals from marrying is impracticable, the majority explained that administrative challenges do not render a system constitutional, and noted that the statute authorizing marriage of non-procreative first cousins was inconsistent with appellant's position.

The majority stated that the State's interest in childbearing and childrearing did not share a causal connection to a ban on same-sex marriage. The majority relied on Windsor that the recognition of same-sex couples will not alter the personal decisions of opposite-sex couples.

Appellants asserted that the same-sex marriage ban is justified by the preference for children to be raised by a man and woman. However, the majority found that law was not narrowly tailored to meet this goal because the state does not restrict the right to marry based on parenting guidelines. The majority relied on Stanley v. Illinois, 405 U.S. 645 (1972), where the Court invalidated a law making the State the custodian of children of unwed parents upon the death of the mother. The Court concluded that not all unmarried fathers are unfit to raise their children, as asserted by the state. Similarly not all opposite-sex couples are preferable over any same-sex couple. The majority was unwilling to accept on faith the argument that children raised by opposite-sex parents are better off than children raised by same-sex parents, because arguments based on speculation cannot survive strict scrutiny. The court again pointed to Windsor, stating that the refusal to recognize same-sex marriage harms the children of those couples.

The majority addressed the final justification of accommodating religious freedom and reducing civic strife by stating that the Supreme Court has held that public opposition cannot form the basis for violating a fundamental right. Furthermore, the decision related only to civil marriage, not to religious ceremonies. Religious institutions, the majority emphasizes, are still free to practice their own traditions as they always have.

The majority then addressed appellants' concerns about the value of democratic decision-making by stating that fundamental rights may not be limited by voters, nor does the experimental value of federalism outweigh an individual's right to due process and equal protection.

Appellants raised a concern that recognizing same-sex marriage began a slippery slope toward recognizing polygamy and incest. However, the majority explained that its basis for finding that the plaintiffs were seeking to exercise a fundamental right was based on Supreme Court jurisprudence recognizing a right to engage in same-sex relationships, whereas the Court had not recognized a right to engage in polygamy or incest. Appellants also contended that the decision would lead to the privatization of marriage, but the majority dismissed that because the appellants provided no authority to support that this would render the statutes constitutional.

Finally, the majority stressed that its opinion did not endorse a finding that those who oppose same-sex marriage are intolerant. The court stated that it was not making a judgment on the minds and hearts of those who support Amendment 3.

The court stayed its decision pending the filing of a petition for a writ of certiorari.

Judge Kelly, concurring in part and dissenting in part, agreed with the majority that the Governor and Attorney General were proper defendants, that the appeal was permissible without the Salt Lake County Clerk, and that the plaintiffs had standing to challenge Amendment 3. Judge Kelly disagreed, however, that Baker was not controlling and that there was a fundamental right to marry that could be exercised by the plaintiffs. Judge Kelly performed an analysis of the issue under the equal protection clause, and determined that Amendment 3 was rationally related to the State's interests in "(1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area."

The dissent stated that because the Constitution makes no mention of the regulation of marriage, it is a power that should be exercised by the States. Furthermore, although the Court has determined that marriage is a fundamental right, those decisions have always involved opposite-sex couples. The dissent emphasized the importance of allowing states to be "laboratories of democracy," stating the forcing all States to recognize same-gender marriage "turns the notion of a limited national government on its head."

The dissent stated that Baker must still be controlling because summary dismissals by the Supreme Court are still considered decisions on the merits that are to be followed by lower courts until the Supreme Court makes a contrary decision.

The dissent addressed plaintiffs' argument that excluding same-sex couples from marriage is a gender-based classification. However, the dissent noted that Amendment 3 does not treat men and women differently - same-sex male and same-sex female couples are equally subject to the laws. Because there is no disparate treatment between men and women, there is no basis for a gender discrimination equal protection claim.

Plaintiffs then argued that discrimination on the basis of sexual orientation required heightened scrutiny. However, the dissent noted that the Supreme Court had not assigned a level of scrutiny to sexual orientation, and that the Tenth Circuit had already rejected heightened scrutiny in Price-Cornelson v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008), Walmer v. U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995), and Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992).

The dissent explains that the fundamental right to marry does not extend to same-sex couples because same-sex marriage is a recent concept. Thus, there is no deeply rooted tradition in the Nation's history required for a fundamental rights classification. Romer, Lawrence and Windsor created protection for "moral and sexual choices" of same-sex couples, but did not create a fundamental right to same-gender marriage, or state that heightened scrutiny should be applied to classifications based on sexual orientation. Furthermore, the dissent noted that the Court in Lawrence specifically did not address the issue of same-sex marriage. Additionally, the dissent notes that Windsor did not limit the ability of a state to outlaw same-sex marriage or create a fundamental right to same-sex marriage, but mandated that the federal government defer to States to make decisions regarding marriage.

With respect to rational basis, the dissent noted that extreme deference should be given to the decisions of the State, and that any plausible reason that the classification could advance will satisfy rational basis. Furthermore, the legislature need not have actually been motivated by the reason given, and a law may be over-inclusive or under-inclusive and still meet rational basis. The dissent noted that the procreative capabilities of opposite-gender couples are a permissible consideration by the legislature. Simply because the fundamental right to marriage has been discussed separate from procreation does not mean that legislatures may not consider procreation in regulating marriage.

Finally, the dissent urged that the court should refrain from using the Fourteenth Amendment as a means for imposing its views upon others.

To read the full opinion, please visit:

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: June 25, 2014

Docket Number: 13-4178

Decided: Ruling that Amendment 3 is unconstitutional and preliminary injunction was affirmed, but a stay enforcing the injunction was issued until the Supreme Court of the United States had made a decision on any potential writ of certiorari.


Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants - Appellants

Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, Utah (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, Utah, and Kathryn D. Kendell, Shannon P. Minter, David C. Codell, National Center for Lesbian Rights, San Francisco, California, with her on the brief), for Plaintiffs - Appellees.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 06/29/2014 07:58 PM     10th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top