The eyes of same-sex couples around the nation were focused on Denver today as the 10th Circuit Court of Appeals heard arguments in Kitchen v. Herbert, a case where a federal judge struck down the Utah state ban on the freedom to marry for same-sex couples. Marriage equality advocates were both upbeat and cautious when the oral arguments concluded, nervous about an apparently divided court. Also of interest is the question of whether the court will give any credence to a discredited study about children raised by same-sex parents.
Next Thursday, on April 17, a same three-judge panel will hear an Oklahoma case, Bishop v. Smith, in which a federal judge also struck down the stateÂ’s marriage ban. In the latter case, the judge immediately issued a stay in anticipation of an appeal by the state
FrontiersLA.com | Utah Gay Marriage Case Heard by 10th Circuit
Quick question for you legal experts out there on the federal appeals circuit. What happens if the 10th finds that Utah was abiding by Windsor in setting the standards of marriage in their state via consensus to only include "one man and one woman" to the bane of polylgamists, gays & minors?
Do Virginia, California and all the other states forced to abandon their constitutional right to consensus have their laws revitalized?
From
Windsor:
By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group.
Department of Agriculture v. Moreno, 413 U. S. 528, 534-535. DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA's avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
Bloomberg Law - Document - United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808, 118 FEP Cases 1417, 57 EBC 1577 (2013), Court Opinion
The mistake you are making – and for quite some time now – is to incorrectly infer that if the states have the right to allow same-sex couples access to their marriage law, they also have the ‘right’ to disallow same-sex couples access to their marriage laws.
Nothing could be further from the truth, as you are confusing two separate legal doctrines.
Windsor concerned the constitutionality of a
Federal statute, a law which sought to disadvantage same-sex couples in violation of the Fifth AmendmentÂ’s Due Process Clause, applicable only to the Federal government.*
Windsor did not address the issue of the validity of state laws that prohibit same-sex couples from entering into marriage contracts, nor is
Windsor a ‘states’ rights’ case – it addressed only the relationship between the Federal government and same-sex couples whose marriages are recognized in their respective states of residence, where the Federal government may not disadvantage same-sex couples by withholding from them the benefits of Federal recognition of marriage in general.
If the 10th Circuit invalidates the lower courtÂ’s ruling, upholding Amendment 3 as Constitutional, it will be because Utah successfully demonstrated that the Amendment did not violate the Equal Protection Clause of the 14th Amendment, having nothing to do with the authority of the states to regulate marriage law.
Indeed, all the parties involved acknowledge the fact that the states have the authority to compose their marriage law as they see fit – but however those laws are composed, they must be made available to all who are eligible to participate in those laws, including same-sex couples.
Windsor is relevant in the 14th Amendment challenges to statesÂ’ laws that seek to deny same-sex couples their equal protection rights because it is the Supreme CourtÂ’s reaffirmation of long-standing case law that gay Americans constitute a class of persons entitled to Constitutional protections per
Romer and
Lawrence.
Last, this issue has nothing to do with ‘polygamists’ or under-aged children ‘marrying’ because, unlike same-sex couples, marriage laws are not written to accommodate such persons.
*The Federal Constitution is applied to the states via the 14th AmendmentÂ’s Due Process and Equal Protection clauses, where the former has the effect of applying the 5th Amendment to the states and the latterÂ’s intent is to ensure the states donÂ’t seek to exclude American citizens from their laws for reasons absent a rational basis and proper legislative end, such as denying same-sex couples access to marriage law. 
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