Kitchen v. Herbert
2014 U.S. App. LEXIS 11935
| 10th Cir. | 2014Background
- Utah passed Amendment 3 and §30-1-4.1 to prohibit recognition of same-sex marriages; the district court struck them down as unconstitutional under the Fourteenth Amendment.
- Plaintiffs include six Utah couples (Kitchen/Sbeity, Wood/Partridge, Archer/Call) challenging the ban and nonrecognition provisions.
- Salt Lake County Clerk license issuance was denied to same-sex couples, causing financial and legal harms.
- Governor and Attorney General appealed the district court’s injunction; the Clerk did not challenge the district court’s injunction on appeal.
- The court addresses standing, the right to marry as a fundamental liberty, level of scrutiny, and equal protection in light of Windsor and related precedents.
- The court ultimately held that same-sex marriage is a fundamental right and affirmed the district court’s judgment invalidating Amendment 3 and related provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there Article III standing to appeal? | Kitchen/Sbeity etc. have standing against the Governor/Attorney General. | Governor/AG have supervisory authority; Clerk’s absence does not bar appeal. | Yes; Governor and AG have standing to appeal. |
| Does the right to marry include same-sex marriages? | Fundamental right to marry extends to same-sex couples. | Historically, rights to marriage are tied to opposite-sex unions. | Yes; plaintiffs have a fundamental right to marry and have it recognized. |
| What level of scrutiny applies to Amendment 3? | Strict scrutiny should apply due to fundamental right and suspect classifications. | Rational basis or other scrutiny appropriate given state interests. | Strict scrutiny applies; Amendment 3 fails under strict scrutiny. |
| Do Utah’s procreation/child-rearing rationales justify the ban under equal protection? | Rationales cannot justify exclusion of same-sex couples from marriage. | If conceivable, rationales may justify under rational basis; under-inclusive and over-inclusive. | Rational basis analysis fails to justify exclusion; bans unconstitutional. |
Key Cases Cited
- Loving v. Virginia, 388 U.S. 1 (U.S. 1967) (right to marry as a fundamental liberty extended to all persons)
- Baker v. Nelson, 409 U.S. 810 (U.S. 1972) (summary dismissal of same-sex marriage claim; not controlling post-Windsor)
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (liberty to engage in intimate conduct includes related rights; broadened view of liberty)
- Windsor v. United States, 133 S. Ct. 2675 (Supreme Court 2013) (federalism and equal dignity issues; invalidates DOMA as unconstitutional under due process/equal protection)
- Glucksberg v. Washington, 521 U.S. 702 (U.S. 1997) (requires careful description of asserted fundamental liberty interest; historical tradition as guideposts)
- Zablocki v. Redhail, 434 U.S. 374 (U.S. 1978) (right to marry is fundamental; strict scrutiny if targeted)