December 26, 2013
New Victories for Marriage Equality

With every new court ruling or legislative enactment or popular vote affirming Americans’ fundamental right to marry, the arguments against same-sex marriage sound increasingly desperate and hollow.

Those arguments were dealt multiple blows in the past few days, first last Friday when a federal district judge in Utah invalidated the state’s constitutional amendment and laws prohibiting marriage between anyone other than a woman and a man. The suit had been brought by three lesbian and gay couples, but Judge Robert Shelby’s ruling immediately allowed same-sex couples to marry statewide, and by Christmas Day about 700 had.

On Monday, another federal district judge, Timothy Black, ruled that Ohio, which also does not permit same-sex marriage, must recognize such marriages performed in other states.

Judge Shelby relied largely on the reasoning of United States v. Windsor, the Supreme Court’s decision in June that struck down the federal Defense of Marriage Act. He ruled that Utah’s Constitution and laws, which “demean the dignity” of same-sex couples “for no rational reason,” violated the United States Constitution’s guarantees of due process and equal protection. The United States Court of Appeals for the 10th Circuit declined to stay the ruling, and the state plans to appeal to the United States Supreme Court.

In the meantime, Judge Shelby has laid out a thoughtful and methodical defense of the constitutionality of same-sex marriage. He allowed that marriage laws are generally left to the states, but he explained that individual rights must trump states’ rights where the two conflict. Citing the Supreme Court’s 1967 decision striking down laws against interracial marriage, Judge Shelby wrote that the Constitution “protects an individual’s ability to make deeply personal choices about love and family free from government interference.”

In response to the plaintiffs’ complaint, Utah failed to present any rational connection between its laws and a legitimate governmental purpose. During a hearing earlier this month, Judge Shelby repeatedly pressed the state’s lawyers to explain how, as they contended, permitting same-sex marriages would undermine the incentive for opposite-sex couples to marry and have children. Their response: “We just simply don’t know.” Of course, it “defies reason,” as the judge wrote, that same-sex marriages would affect opposite-sex marriages one way or another.

Arguments like these are nothing more than the fading recitation of long-ingrained prejudices. The defenders of “traditional” marriage are losing — and much faster than anyone might have predicted even last summer.

Anyone, that is, besides Justice Antonin Scalia, one of the court’s most reliable votes against equal rights for gays and lesbians. In his angry dissent from the landmark 2003 decision striking down anti-sodomy laws, Justice Scalia asked: If states may no longer pass laws that express moral disapproval of homosexual conduct, “what justification could there possibly be for denying the benefits of marriage” to same-sex couples? In a similarly hostile dissent in the Windsor case, he predicted that the court’s logic would soon lead to the invalidation of state laws banning same-sex marriage. So far, Justice Scalia has largely been proved right.

If Utah’s appeal is heard by the Supreme Court, the court should extend its repeated invocation of the equal dignity of gays and lesbians and strike down all bans on same-sex marriage.

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