Same-Day Victories for LGBT Community

The news over the past few days has made me wish my podcast came out more than once every two weeks, but I know I wouldn’t be able to sustain that schedule indefinitely.

We are quickly approaching the point where a majority of states in the U.S. accept the right to marry for all, regardless of sexual orientation. Today, Two federal courts struck down restrictions on the rights of gay and lesbian couples to marry. The Tenth Circuit Court of Appeals struck down Utah’s amendment banning same-sex marriages, and Judge Richard L. Young, of the District Court for the Southern District of Indiana, struck down Indiana’s statutory same-sex-marriage ban. As he ordered Indiana officials to begin issuing marriage licenses, Judge Young eloquently summed up the developments of the past year far better than I might:

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the injustice that we had not earlier known or understood ends. Because as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. [internal quotations omitted]

I should mention here that while the Indiana decision has immediate effect, the Tenth Circuit’s decision is stayed, meaning it will not go into effect just yet. How long the delay might last depends on whether or not Utah appeals the decision to the Supreme Court and then whether or not the Supreme Court decides to hear the case. So right now the number of states permitting same-sex marriage stands at 21 (including Washington, D.C.). However, the Tenth Circuit’s decision applies to every state within its jurisdiction, which encompasses not only Utah, but also Wyoming, Colorado, Kansas, New Mexico, and Oklahoma. All but one of those states currently prohibit same-sex marriage, New Mexico being the lone bastion of equality. Once the Tenth Circuit’s stay is lifted, the total will include not one, but five new states, bringing it to 26, fully half of the states, plus the District of Columbia.

Rational Basis

The reasoning behind both opinions is, at this point, unremarkable: it is a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution to deny gays and lesbians the right to marry. On the other hand, Judge Kelly’s dissent from the Tenth Circuit’s decision regarding the Utah ban is mildly interesting, in as much as he displays a characteristic misunderstanding of the word “reasonable”:

The State has satisfied its burden on rational basis review. One only need consider the reams of sociological evidence urged by the parties and the scores of amicus briefs on either side to know that the State’s position is (at the very least) arguable. It most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe. Though the Plaintiffs would weigh the interests of the State differently and discount the procreation, child-rearing, and caution rationales, that prerogative belongs to the electorate and their representatives.

I guess someone should point to Judge Kelly that the idea that something is “arguable,” or that someone might “conceivably” believe an argument does not make it rational or reasonable to do so. There are still people who hold to the geocentric model of our solar system, but no one would characterize their position as “reasonable.” Thankfully, his view was in the minority.

It’s not readily clear how this man took the news:

Here is the full Tenth Circuit decision regarding Utah’s ban:

Download (PDF, 262KB)

And here is Judge Young’s order from the Southern District of Indiana:

Download (PDF, 163KB)