A shoe drops in the 10th Circuit

Last Friday, in Derek Kitchen, et al. v. Gary R. Herbert, et al., a federal judge ruled that Utah’s constitutional amendment banning state recognition of same-sex "marriage" is unconstitutional.  “The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.”  The full text of the decision can be read here.

In a July blog entry, I wrote about a similar federal judicial decision out of Ohio.  The title of my blog entry, "The Other Shoe Dropped in Ohio," was a reference to a line from Justice Scalia's dissenting opinion in U.S. v. Windsor, the U.S. Supreme Court decision that struck down that portion of the Defense of Marriage Act that defines marriage for federal purposes.  Justice Scalia scoffed at the majority's assurances that its decision would be limited to the federal level.  "As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."  By this, he meant that it was only a matter of time until a court would apply Windsor at the state level.  The Kitchen decision proved Scalia's predictive acumen. 

The decision did indeed rely upon Windsor ("the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant . . . ").  Ironically, it cites Scalia more than any other Supreme Court Justice, adopting his argument that the Windsor majority's reasoning necessarily compels a similar outcome at the state level.  

So the Kitchen court, in its own reasoning, progresses through a series of Supreme Court decisions, culminating with Windsor, to conclude that it is compelled to rule against the Utah amendment.  The judge would have us believe that he is not rewriting the Constitution, rather it is we who have changed:

Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.  The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex.  The court, and the State, must adapt to this changed understanding. 

But whose knowledge has changed and who is it that "must" adapt because of that change?  The implication of the judge's ruling is that his knowledge, and not that of the overwhelming majority of the voters of Utah that has changed.  So it is not through deliberative debate and decision making through any sort of democratic means that "adaption" will occur, but by judicial compulsion.  

The judicial compulsion that is the essence of the Kitchen decision has greater significance for the state of Oklahoma than did that of the Ohio decision, because Utah and Oklahoma are both in the 10th Circuit.  Lawyers for the state of Utah have already announced that they are appealing the Utah decision.  If the U.S. Court of Appeals for the 10th Circuit upholds the decision, that ruling will become binding precedent on federal courts in Oklahoma, in which case Oklahoma's own constitutional amendment, which was approved by 76% of the voters, will be in jeopardy.

So I was not surprised to learn that litigants in Oklahoma have already attempted to capitalize upon the Utah decision.  Lawyers for two same-sex couples suing for the right to marry and to have a "marriage" from another jurisdiction recognized in Oklahoma have filed an additional brief following the federal ruling out of Utah.  The brief can be read here. 

The couples make the simple argument that the state constitutional amendment at issue in the pending Oklahoma litigation is very much like the one in Utah that was ruled to be in violation of the U.S. Constitution.  The facts and legal arguments in both cases are much the same.  (The Oklahoma litigation has been pending much longer than the one in Utah.) The couples argue that the efficient administration of justice requires that the federal court in Oklahoma rule in their favor so that they can take part in the same appeals process that is now advancing.