How Same-Sex Marriages came to be recognized in Utah

In 2004, in response to the growing number of states recognizing same-sex marriages, the Utah Legislature passed § 30-1-4.1 which declared that “it is the policy of this state to recognize as marriage only the legal union of a man and a woman….” To further support this policy, 66% of the voters in Utah passed “Amendment 3” in 2004, becoming § 29 of Article I of the Utah Constitution. This section stated that: “(1) marriage consists only of the legal union between a man and a woman; and (2) no other domestic union, however, denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”

In response to this Constitutional Amendment, and to the legislature’s new policy, three same-sex couples filed suit against the Governor and Attorney General of Utah and the Clerk of Salt Lake County challenging the provisions of Utah’s laws relating to same-sex marriage. In their complaint, they alleged that the provisions relating to same-sex marriages were a violation of their Equal Protection and Substantive Due Process rights that are guaranteed to them under the U.S. Constitution. In order to be successful under these arguments, the right at issue, the right to marry, had to be considered a fundamental right by the court. The case was filed in one of Utah’s District Court’s, and the court ruled in favor of the plaintiffs concluding that “[a]ll citizens, regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual’s ability to marry and to intimate choices a person makes about marriage and family.” Kitchen v. Herbert, 961 F.Supp. 2d 1181, 1204 (D. Utah 2013). In ruling for the plaintiffs, the District Court held that Amendment 3 was unconstitutional and prohibited any future enforcement of the amendment and further held that the right to marry is a fundamental right that is protected by the U.S. Constitution’s Equal Protection Clause and the Substantive Due Process Clause.

After this adverse ruling by the District Court, the Governor and the Attorney General for Utah filed an appeal with the 10th Circuit Court of Appeals. In the Circuit Court’s opinion upholding the District Court’s ruling, the Circuit Court similarly held that the right to marry “is a fundamental liberty” and therefore is a right that deserves the protection of the Equal Protection Clause. Kitchen v. Herbert, No. 13-4178 (10th Cir. 2014). In explaining how the Due Process and the Equal Protection Clauses are violated by Utah’s same-sex marriage ban, the Court stated: The Due Process Clause ‘forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’

By the same token, if a classification ‘impinge[s] upon the exercise of a fundamental right,’ the Equal Protection Clause requires ‘the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.’ Having persuaded us that the right to marry is a fundamental liberty, plaintiffs will prevail on their due process and equal protection claims unless [the State] can show that Amendment 3 [is narrowly tailored to serve a compelling state interest]. Id. The Court then went on to hold that the ban on same-sex marriages was not narrowly tailored and that there was no compelling state interest involved. As it stands now, the 10th Circuit Court’s opinion is the controlling opinion, which makes Utah’s same-sex marriage ban unenforceable. Therefore, without any word on this case from the U.S. Supreme Court, Utah’s Constitutional Amendment prohibiting same-sex marriages will remain invalid.