Federal appeals court strikes down Utah's gay-marriage ban

Via Gabe Malor, an Indiana district court judge also struck down that state’s gay-marriage ban today, but the Utah ruling’s more important because it comes from an appellate court. In fact, this is the first ruling on SSM from any federal court of appeals since SCOTUS’s Windsor ruling last year. In that case, the Court held that if a state legalized gay marriage then the part of DOMA that denied federal benefits to gay spouses married under that state’s laws was unconstitutional. You could, if you like, read that as a federalism decision: The Court was simply saying that states get to set the rules for marriage, not the feds, and when a state decides that gay couples can marry, the feds can’t constitutionally override that decision.

Scalia, though, called BS on that reasoning in his dissent. The way lower courts will interpret the Supreme Court’s decision, he insisted, is that it’s unconstitutional for any government, federal or state, to deny gays the right to marry. Federalism has nothing do with it. After all, the Court’s reasoning was grounded in language about equal protection and due process. Those rights stem from the Constitution itself, not from some state legislature deciding to bestow them. That was the question that the appellate court in Utah faced today: Is there any argument by which the states should be allowed to deny gays the right to marry even though the feds are constitutionally bound to recognize those unions if a state does?

Answer: Nope. Here’s the 10th Circuit, confirming Scalia’s worst suspicions about the true takeaway from Windsor:


This is about dignity, equality, and (substantive) due process, not federalism. If the Fifth Amendment won’t let the federal government trump those rights as they apply to gay marriage, why on earth would the Fourteenth Amendment let a state do it?

Gabe flags this bit from later in the opinion too:


If federalism and the Bill of Rights conflict (even though they’re both designed, ideally, to preserve liberty), the Bill of Rights trumps. Scalia knew that, and so, of course, did Kennedy. But rather than write a clean, straightforward opinion for the Court in Windsor and rule that gay-marriage bans violate equal protection, he decided to take an indirect route by suggesting that state legislatures might play a role in this too. He realized that lower courts would use his opinion to strike down gay-marriage bans, though, and he also realized that by the time this issue makes its way back to SCOTUS, there’ll now be enough lower-court precedents siding with him that he can point to them in his next ruling as persuasive. Essentially, he created the unstoppable judicial momentum for legalizing SSM and soon he’ll use that momentum to justify taking the final step, a landmark Supreme Court ruling striking down state gay-marriage bans. After today, he’s right on track.