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.