The New Mexico Supreme Court ruled on Thursday in a unanimous that the ban on same-sex marriage in unconstitutional, making it the 17th state to do so. This was not such a big surprise. The same court had ruled in August 22 of this year that a photographer could not deny services to a same-sex couple. (I will write more about this case later because it offers some interesting features.)
But what did take me by surprise was Friday’s ruling by a US District Court judge Robert Shelby that Utah’s ban on same-sex marriage was also unconstitutional because it violated such couples’ right to due process and equal protection under the 14th Amendment. What was surprising was not the ruling nor the reasoning, both of which are reasonable, but that it was in Utah, where the Mormon opposition to same-sex marriage is particularly strong, despite the temporary pretense by the Mormon church of being more accepting during the time when Mitt Romney was running for president.
Even more interesting was that some county clerks’ offices started issuing licenses immediately and couples have already got married. The state is filing a request for an emergency stay of the judge’s ruling while it appeals but it is not clear if the judge will grant one. But even if he does, by the time that goes through, many couples would have got married, making it harder to reverse the decision.
In his 53-page opinion concerning the three couples before him who had applied to get married, judge Shelby drew heavily from the DOMA ruling United States v. Windsor decided earlier this year by the US Supreme Court that, although it did not address the legality of same-sex marriages, did say that unequally treating those marriages that had been contracted legally under state law was unconstitutional. As justice Scalia warned, the language of the DOMA ruling would inevitably be used to outlaw bans on same-sex marriage and he was right. Judge Shelby used Scalia’s reasoning quite extensively in arriving at his verdict, even to the extent of quoting his minority opinions from the DOMA case and the earlier 2003 Lawrence v. Texas case that overturned laws banning homosexual acts.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same sex couples marital status. (p. 13, direct quote from Scalia in the DOMA case, p.13)
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? (p.31, direct quote from Scalia in the Lawrence v Texas case,)
In his conclusion, judge Shelby drew a parallel between this case and that of the 1966 Loving v. Virginia case that ended the ban on mixed-race marriages.
In 1966, attorneys for the State of Virginia made the following arguments to the Supreme Court in support of Virginia’s law prohibiting interracial marriage: (1) “The Virginia statutes here under attack reflects [sic] a policy which has obtained in this Commonwealth for over two centuries and which still obtains in seventeen states”; (2) “Inasmuch as we have already noted the higher rate of divorce among the intermarried, is it not proper to ask, ‘Shall we then add to the number of children who become the victims of their intermarried parents?’”; (3) “[I]ntermarriage constitutes a threat to society”; and (4) “[U]nder the Constitution the regulation and control of marital and family relationships are reserved to the States.” Brief for Respondents at 47-52, Loving v. Virginia, 388 U.S. 1 (1967), 1967 WL 113931. These contentions are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage. For the reasons discussed above, the court finds these arguments as unpersuasive as the Supreme Court found them fifty years ago. (p. 51)
So for the moment at least, Utah becomes the 18th state to allow same-sex marriages, surprising everyone.