Elise Ellsworth
On April 10, 2014, the 10th Circuit will hear the case Kitchen v. Herbert, a case challenging Utah’s Amendment 3 constitutional ban on the marriage of same-sex couples. This follows the holding in the United States District Court for the District of Utah that found the state’s ban on same-sex marriage unconstitutional. The holding in this case could affect the 31 U.S. states and the six Indian Nations (including the Navajo, Chickasaw and Cherokee tribes) that have made laws prohibiting two persons of the same gender from marrying. Past Supreme Court cases have not granted any state the power to tamper with state marriage amendments involving gender and marriage.
I. Loving v. Virginia
This Supreme Court case (1967) overturning a state anti-miscegenation law (making marriage illegal between persons of different races) is the most common one cited by supporters of same-sex marriage and by the District Court in the Kitchen case. However, Loving was concerned with race, not gender and the Supreme Court made this a clear distinction in the following case of Baker v. Nelson.
II. Baker v. Nelson
In Baker v. Nelson (1972) the Court dismissed a case that claimed that federal constitutional rights were violated for two men who wanted to marry. The Supreme Court distinguished its ruling in Baker from its ruling in Loving stating: “[I]n commonsense and in a constitutional sense, there is a clear distinction between restriction based merely upon race and one based upon the fundamental difference in sex.” The Supreme Court finally dismissed the case “for want of a substantial federal question.” In other words, the Court did not feel it could constitutionally pass judgment on a case clearly within the realm of state marriage law.
III. Hollingsworth v. Perry
Hollingsworth (2013) did not overturn Proposition 8 nor declare the proposition unconstitutional. Instead, the Supreme Court refused to make any holding in the Hollingsworth case for lack of standing by the petitioners in the case. The petitioners in Hollingsworth were citizens who brought the case because elected officials who were supposed to defend state laws refused to do so. However, because persons without standing (citizens and not elected officials) brought the case before the Supreme Court, the Court held that “we have no authority to decide this case on the merits, and neither did the Ninth Circuit.”
IV. Windsor v. United States
Windsor v United States (2013) again emphasized rights of states to enact their own marriage laws. While the holding of Windsor was a bit perplexing (perhaps intentionally so), clearly federalism and the power of states to enact their own marriage laws were at the heart of the Court’s holding in the case. In Windsor the Supreme Court found that “The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for ‘when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States’ … Marriage laws may vary from State to State, but they are consistent within each State.”
Although Supreme Court justices surely and evidently had strong ideological leanings in the case, the actual holding in Windsor was a protection of New York’s marriage law and indeed, the marriage laws of each of the several states. The Court found DOMA unconstitutional because of the law’s “unusual deviation from the tradition of recognizing and accepting state definitions of marriage.”
V. A Long History of Supreme Court Cases Leaves Marriage Law for the States to Decide
The Constitution delegates certain powers to the federal government and leaves powers not enumerated therein to the states (Article I and Amendment 10). There is no power to regulate family law or anything similar to it bestowed upon the federal government by the Constitution. A long line of Supreme Court cases upholds the power of states in matters of family law. The Federal District Court of Utah made a large departure from established precedent in its ruling in Kitchen. As a Utah resident who supports traditional marriage and the Utah Constitutional provisions for marriage (Article I, Section 29 ) I would urge citizens of Utah to speak out in a well-reasoned manner about this issue. The power to bestow marriage and to define its requirements should rest with the states.