Utah: A Progressive Frontier for Marriage?

by Matthew Piccolo

When asked which states are laboratories for progressive policymaking, most people would list Massachusetts, Oregon, Vermont, and a handful of other states. Certainly none would mention Utah.

Indeed, a recent Gallup poll found that Utah is the fifth most conservative state. And yet, one might think Utah is quickly becoming a progressive frontier for marriage because in one week’s time same-sex marriage and some types of polygamy became legal in Utah.  The truth is, though, that Utahns did not choose to adopt these policies, the federal courts have required them to do so.

On December 13, 2013, Judge Clark Waddoups, a federal judge for the District of Utah, ruled on summary judgment that the part of Utah’s anti-bigamy statute prohibiting religious cohabitation violates the Free Exercise and Due Process Clauses of the U.S. Constitution.

Utah’s statute prohibits plural marriage and a married person cohabiting with a person other than his or her spouse. Judge Waddoups ruled that the plural marriage part is constitutional (though there is no fundamental right to polygamy), but the cohabitation part violates the Free Exercise Clause because it is not generally applicable or operationally neutral. In other words, it prohibits religious cohabitation, and the state prosecutes only people engaging in religious cohabitation while other forms of cohabitation, as well as adultery and fornication, go virtually unpunished.

Judge Waddoups said that if multiple partners consciously choose to enter a personal relationship they knew the state would not legally recognize as marriage, then the relationship is protected, even if the partners use religious terminology such as “marriage,” “polygamy,” or “plural marriage” to describe their often religiously motivated cohabitation.

Finally, Judge Waddoups held that the state has no rational basis under the Due Process Clause for distinguishing between adulterous cohabitation and religious cohabitation. As a result, Utah cannot prosecute individuals involved in plural relationships so long as they seek legal recognition of no more than one of the private marriages in the group.

What this ruling could mean for plural marriage in other states is unclear. Its application is highly specific to Utah law, but, if upheld on appeal, it could possibly be adapted to anti-bigamy laws in other states.

One week after the plural marriage ruling, Judge Robert J. Shelby, a federal judge for the District of Utah, ruled on summary judgment that Utah’s constitutional amendment defining marriage as between a man and a woman violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

This ruling is especially notable because it is the first ruling in federal court addressing a state ban on same-sex marriage following United States v. Windsor. If upheld on appeal, other circuits could find its rationale persuasive, and it also indicates how at least some judges might apply Windsor to state same-sex marriage bans.

Windsor contained two primary strands—a federalism strand and an animus strand. The federalism strand said that regulating and defining marriage is “a virtually exclusive province of the states.” The animus strand said that Section 3 of DOMA was invalid because it injured and demeaned same-sex couples (and their children) and placed them in a second-tier marriage. In Windsor, the Court implied that state laws implicating the animus strand merit little to no protection from the federalism strand.

In his dissent, Justice Scalia argued that the courts could easily apply the rationale in Windsor to state same-sex marriage bans. And Judge Shelby did just that, and quoted Justice Scalia in his opinion.

Judge Shelby said that when individual rights and states’ rights conflict, individual rights win. He ruled that same-sex partners have a fundamental right to marry, related to the rights to privacy and intimate association, and that moral disapproval (following Lawrence v. Texas) is not a sufficient state interest to overcome strict scrutiny, and neither is an interest in encouraging procreation. Judge Shelby said these purposes do not satisfy even rational-basis review.

In his equal protection analysis, Judge Shelby followed the rationales in Romer v. Evans and Windsor by not selecting a standard of review because the state’s reasons for the law do not survive rational-basis review. He applied the animus strand from Windsor by comparing the purposes and effects of DOMA and Utah’s constitutional amendment. He held that both demean and humiliate same-sex couples and their children.

Following the opinion’s release on December 13th, nearly 1,000 same-sex marriages were performed in Utah before the Supreme Court issued a stay on January 6, halting same-sex marriages in the state.

Post-Windsor, the federal courts—not voters in Utah or other conservative states—might be poised to require nationwide same-sex marriage. However, advocates of same-sex marriage should not celebrate quite yet. A multitude of legal and political factors could stall their efforts, if not completely derail them. In the meantime, perhaps unexpectedly, some of the most important battles over marriage will be fought in Utah, one of the reddest of states.

Matthew Piccolo is a second-year law student at Michigan State College of Law and a staff member of the Michigan State Law Review.