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Utah's Ban on Same-Sex Marriage Violates Due Process, Equal Protection

Publication Date: 
July 01, 2014
Source: 
Bloomberg BNA
Author: 
Patrick L. Gregory

Professor Jane Schacter comments on a recent ruling regarding same-sex marriage laws in the state of Utah for Bloomberg BNA.

The U.S. Constitution's 14th Amendment “protects the fundamental right to marry,” and Utah laws banning same-sex marriage are therefore unconstitutional, the U.S. Court of Appeals for the Tenth Circuit held June 25 (Kitchen v. Herbert, 2014 BL 177109, 10th Cir., No. 13-4178, 6/25/14).

Two professors said the decision is significant because it is the first time a federal court of appeals has applied the high court's reasoning in striking down the Defense of Marriage Act to state-level marriage bans, and because the decision applied strict scrutiny.

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Jane S. Schacter, a professor at Stanford Law School, Palo Alto, Calif., and co-author of Cases and Materials on Sexual Orientation and the Law, told BNA in an e-mail June 26, “This is a very significant decision.”

Schacter said that since the high court's decision striking down the Defense of Marriage Act in United States v. Windsor, 81 U.S.L.W. 4633 2013 BL 169620 (U.S. June 26, 2013) (82 U.S.L.W. 38, 7/2/13), “there has been an unbroken string of victories” for plaintiffs challenging marriage bans “in the federal district courts all over the country.”

“But this is the first in a federal court of appeals,” she said. “I can't remember anything quite like the constitutional momentum that has taken hold on marriage” post-Windsor, she said.

“The federal judges who have ruled for marriage equality are from red states and blue ones, are appointees of Republicans and Democrats,” and this ruling “just strengthens that sense of momentum,” Schacter said.