Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on Breitbart.com, December 21, 2013.
One week after a federal judge in Utah held laws against polygamy are unconstitutional, another Utah federal judge has held that the U.S. Constitution also contains a right to same-sex marriage, describing laws defining marriage as between men and women "irrational." In his 53-page opinion for Kitchen v. Herbert on Dec. 20, U.S. District Judge Robert Shelby -- who was appointed by President Obama in 2011-compared marriage laws that do not include homosexual pairings to racist laws. He noted that in its 1967 case Loving v. Virginia, the U.S. Supreme Court struck down as a violation of the Fourteenth Amendment a Virginia law that did not allow a white man to marry a black woman. He characterized the constitutional right being violated in Loving as "the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond."
However, the ruling in Loving does not appear to stand for what Shelby says it does. The Supreme Court in Loving reasoned that the Fourteenth Amendment was adopted in 1868 after the Civil War primarily to eradicate all laws of racial discrimination. A law that did not allow black and white Americans to marry is a textbook example of a law that violates this central principle. It has no application either to homosexual unions or to polygamous marriage, where last week another federal judge in Utah invoked Loving to support declaring a right to multi-person marriage.
Shelby noted that the Supreme Court has said that fundamental rights in the Constitution are only those that are "deeply rooted in this Nation's history and tradition," then cited an older Supreme Court case framing the question of whether such a right is "implicit in the concept of ordered liberty." He declared, "Both same-sex and opposite-sex marriages are therefore simply manifestations of one right-the right to marry-applied to people with different sexual identities."
However, the Supreme Court clarified in 2010 in McDonald v. Chicago that fundamental rights are those that are essential to an American system of ordered liberty, and that to determine if such a right is truly essential for American liberty, a court looks to whether it is deeply rooted in American history and tradition. Marriage between one man and one woman fit this description, which is why laws disallowing marriage because of skin color are unconstitutional. But same-sex marriage was declared legal for the first time in this nation in 2003 in Massachusetts, so it is not grounded in this nation's history and tradition back to 1789, as are all other fundamental rights.
Shelby also discussed U.S. v. Windsor, the Supreme Court decision from earlier this year in which the Supreme Court by a 5-4 vote struck down part of the federal Defense of Marriage Act (DOMA). Yet Justice Anthony Kennedy's opinion only struck down the part of the law dealing with federal programs and definitions and explicitly acknowledged the states' authority to define and regulate marriage. He also expressly stated that Windsor was not ruling upon such state laws. After noting all this, Shelby nonetheless held that Windsor's reasoning gave him authority to strike down Utah's state law on marriage.
In part of Shelby's opinion, he cited as supporting a right to same-sex marriage the U.S. Supreme Court's 1888 case Maynard v. Hill, where the Court held that marriage is "the foundation of the family and society, without which there would be neither civilization nor progress." He also cited the 1923 case Meyer v. Nebraska, where the Court held that it is a fundamental right "to marry, establish a home and bring up children."
Yet these cases, too, do not support same-sex marriage, as those cases' clear context is marital unions that can produce children through the sexual intercourse of its participants. That is why without marriage there would not be a continuing civilization, because there would not be a next generation to continue that civilization. In getting married, a couple has children that are born into that home and which the couple must raise.
The judge ruled, however, that recent Supreme Court cases on marriage also tie it to a right to privacy (which, like marriage, is never mentioned in the U.S. Constitution). He leans heavily on the Supreme Court's 2003 decision Lawrence v. Texas, where Justice Kennedy elaborated a broad theory of constitutional liberty, over the objections of justices who emphasized they are bound to adhere to the Constitution as it is written and that only the American people can choose to change those words through amending the Constitution.
In Lawrence, Kennedy wrote that the Founding Fathers "knew times could blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Shelby claimed that America has changed for the better in its "knowledge of what it means to be gay or lesbian." He defined the constitutional right to marry as the right to choose someone with which they think they "are able to develop a committed, intimate relationship." He then mowed down Utah laws on marriage by holding, "The court, and the State, must adapt to this changed understanding."
The judge's opinion also declared sexual behavior to define a "suspect class" of people, which means those defined by their sexual activity enjoy protection equal to that which the Constitution secures for matters pertaining to race. He then additionally held that traditional marriage laws are not at all related to advancing any legitimate public interest and as such are completely irrational.
Shelby also briefly discussed religious liberty. He did not discuss any of the growing instances of religious persecution arising from same-sex marriage, such as a New Mexico photographer or Colorado baker sued for their religious beliefs. Instead, he made the Orwellian finding that his ruling will actually enhance religious liberty by empowering liberal religious groups to conduct same-sex ceremonies.
It is telling that this judge does not mention even once that a fellow judge on his court had just declared a right to polygamy so that people can demand to marry multiple people of either sex, as Breitbart News reported just last week. Everything Judge Shelby says in Kitchen would also require the existence of such a right, but he utters not one word about this elephant in the room, likely understanding that it would cast in a very different light his contention that those who believe marriage is the union of a man and woman are simply and utterly irrational.
Utah will likely appeal this case to the U.S. Court of Appeals for the Tenth Circuit, and from there possibly the Supreme Court.