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SUPREME COURT OF THE UNITED STATES

Kitchen v. Herbert
May 19, 2014
I
This case presented before the Court concerns an alleged violation of the right to due
process and equal protection under the Fourteenth Amendment of the United States Constitution.
This violation is said to have occurred as a direct result of two statutory prohibitions on same-sex
unions, and an amendment to the Utah Constitution prohibiting same-sex marriage. The statutory
prohibitions are Section 30-1-2 and Section 30-1-4.1 of Utah Code. Section 30-1-2, passed in
1977, claims marriages between persons of the same sex are prohibited and declared void.
While Section 30-1-4.1, passed in 2004, claims:
(a) It is the policy of this state to recognize as marriage only the legal union of a man and
a woman as provided in this chapter.
(b) Except for the relationship of marriage between a man and a woman recognized
pursuant to this chapter, this state will not recognize, enforce, or give legal effect to
any law creating any legal status, rights, benefits, or duties that are substantially
equivalent to those provided under Utah law to a man and woman because they are
married.
November 2, 2004 the amendment, known as Amendment 3, was submitted for referendum
during the general election. Amendment 3 was successfully passed, receiving 66% of voter
support. The language of Amendment 3 is as follows:
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or
given the same or substantially equivalent legal effect.
The Plaintiffs challenging, Amendment 3 and the two statutory prohibitions, are three gay and
lesbian couples residing within the state of Utah. Derek Kitchen & Moudi Sbeity are two males
currently dating and living together in Salt Lake City. They sought a marriage license from the
Salt Lake County Clerks office in March 2013, but were denied. Karen Archer & Kate Call are
two women who were legally married in the state of Iowa. The couple reside in Wallsburg and
are not legally recognized as married in the state of Utah. Laurie Wood & Kody Partridge are two

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females currently dating and living together in Salt Lake City. The couple sought a marriage
license from the Salt Lake County Clerks office in March 2013, but were also denied.
II
When considering the constitutionality of laws and their alleged violation of fundamental
rights, the Court has historically approached deliberation in two ways: substantive due process
and equal protection. The Courts application of substantive due process has resulted in an
establishment of unenumerated fundamental rights that were derived from past interpretations of
liberty within the Due Process Clause. The fundamental right to privacy, for instance, was
established in Griswold v. Connecticut (1965). This right was then applied and upheld in Roe v.
Wade (1973), Planned Parenthood v. Casey (1992), and Lawrence v. Texas (2003). The most
relevant right to this current case, has been established out of both substantive due process and
equal protection: the fundamental right to marriage.
The Court recognized and established a fundamental right to marry under the Due
Process Clause in Meyers v. Nebraska (1923). This right to marriage has consistently been
upheld as integral to an individuals right to liberty and privacy. While marriage was established
as a federally protected right in Meyers, the Court also recognized the concerning implications
that such a right might have when placed in the context of federalism. The delicate balance
between federal and state power is a struggle that has required the historic mediation of this
Court since Marbury v. Madison (1803).
The Court no doubt observes a states right to enforce and regulate its own set of laws
that are responsive to the inhabitants residing within its borders. The deference given to states by
this Court, however; is not without limit. Any state law that violates an individuals protected
constitutional right has been struck down by this Court. State laws that seek to restrict
fundamental rights from being enjoyed by specific classifications of people, are also struck
down. Such laws are considered to be in violation of the Equal Protection Clause. The Court has
established a three tiered standard for determining such violations, known as judicial scrutiny.
When considering whether a law violates the Equal Protection Clause, the Court seeks to apply
either rational basis, intermediate scrutiny, or strict scrutiny.
When the Court considers rational basis, a law must be shown to rationally be related to a
legitimate state interest. This Court has historically applied rational basis to cases involving

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income San Antonio Ind. School District v. Rodriguez (1973), age Murgia v. Massachusetts
(1976), and disability Cleburne v. Cleburne Living Center (1985). Intermediate scrutiny requires
a law to be related to an important government interest. This Court has historically applied
intermediate scrutiny to cases concerning gender as in Craig v. Boren (1976). When the Court
applies strict scrutiny, a law must be narrowly tailored to further a compelling government
interest. The Court applies strict scrutiny when a law targets a suspect class. Strict scrutiny has
established three qualifications that must be met: 1) the class has suffered a long history of
discrimination, 2) the law targets a class on the basis of immutable qualities, and 3) the class has
no meaningful political power. The Court has historically only granted suspect classification
under strict scrutiny on the basis of race as in Loving v. Virginia (1967), Shelley v. Kraemer
(1948), Burton v. Wilmington Parking Authority (1961), and Brown v. Board of Education
(1954).
Having found no legitimate or rational reason for the States laws to deny same-sex
couples the fundamental right to marriage, the US District Court of Utah has since ordered
Section 30-1-2, Section 30-1-4.1, and Amendment 3 unconstitutional.That court has ruled in
favor of the Plaintiffs, confirming that the two statutory prohibitions and Amendment 3 were in
direct violation of the Plaintiffss rights to due process and equal protection under the Fourteenth
Amendment of the United States Constitution.The State has appealed the US District Court of
Utahs decision, and seeks the jurisdiction of this Court.
The Court must now determine whether the state of Utahs regulation of marriage,
prohibiting and excluding same-sex couples, is in compliance with the Constitution of the United
States. This Court, when considering Section 30-1-2, Section 30-1-4.1, and Amendment 3, must
evaluate whether a violation of the Due Process Clause or Equal Protection Clause has occurred.
Furthermore the Court must determine and interpret the level of scrutiny these laws require, as
dictated by past precedent.

III.
The State concedes the Plaintiffs fundamental right to marriage, as established in Meyer
& Loving. The State does not find Section 30-1-2, Section 30-1-4.1, or Amendment 3 in conflict

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with this fundamental right to marriage. The State argues that under both statutory prohibitions
and Amendment 3 the Plaintiffs are still allowed to marry persons of the opposite sex. The
Plaintiffs counter that this argument fails to take into account the deep-seated and immutable
quality of their sexual orientation. The Plaintiffs asserts that sexual orientation is not a choice,
therefore the Plaintiffs will be unable to form any genuine intimate bond with a partner of the
opposite sex. The Plaintiffs feel then that Section 30-1-2, Section 30-1-4.1, and Amendment 3
effectively denies gay and lesbian individuals the fundamental right to marriage.
The State also offers three reasons in defense of Amendment 3, as follows: 1) the
Plaintiffs are not qualified to enter into a marriage; 2) the Plaintiffs are seeking a new right; and
3) history and tradition have not recognized a right to marry a person of the same sex. The State
argues that an essential qualification of marriage is the ability to procreate. The State reasons that
its interest lies in maintaing the survival and existence of society, procreation is essential to this
interest. Plaintiffs counter this procreation interest by pointing to instances of opposite-sex
couples who cannot procreate, due to infertility or age. The Plaintiffs assert that the State would
and could not deny those couples the right to marry, and so the qualification of procreation is not
compelling.
The States second interest asserts that same-sex marriage is a distinct right outside of
traditional opposite-sex marriage; and so this new right is not deeply rooted in this Nationss
history and tradition. Without a historically established precedent for same-sex marriage, the
State argues that same-sex marriage is not a fundamental right. The Plaintiffs counter by pointing
to the Courts decision is Loving, asserting that interracial marriage was not considered a new
right. Instead the Court held that individuals cannot be prevented from exercising an established
right of marriage on the basis of race. Here too the Plaintiffs assert that they are being prevented
from exercising an established right of marriage, but on on the basis of sexual orientation.
The States third interest asserts that because the fundamental right to marriage has never
before been interpreted to apply to same-sex couples, the State cannot grant this right to samesex couples. The Plaintiffs counter with similar reasons when disputing the States second
interest. Plaintiffs argue that before Brown there was no historic precedent for desegregation. Yet,
the Court determined that a heightened scrutiny should be granted to race and a precedent was

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set. Plaintiffs argue then that tradition and history are not compelling reasons to deny a
fundamental right.
IV.
This Court has heard the arguments of both the Plaintiffs and State, concerning the
constitutionality of Section 30-1-2, Section 30-1-4.1, and Amendment 3. The Court
acknowledges the three interests of the State: 1) the Plaintiffs are not qualified to enter into a
marriage; 2) the Plaintiffs are seeking a new right; and 3) history and tradition have not
recognized a right to marry a person of the same sex. None of these interests are found by this
Court to be persuasive or compelling.
The first State interest qualifying procreation as essential to marriage, is not found to be
an important enough interest when restricting same-sex couples from marriage. As the US
District Court of Utah acknowledged in its decision, the State fails to account for opposite-sex
couples who are unable to naturally procreate due to infertility or age. Furthermore the decision
to procreate is one of intimacy that occurs within the sanctity of existing marriages, and does not
precede marriage itself. As was ruled in Griswold couples have a fundamental right to marriage
and privacy which includes the freedom to choose not to procreate. The Court then finds this
State interests to be in violation of the Plaintiffs right to substantive due process.
The second State interest asserting same-sex marriage as distinctly separate from the
established fundamental right to marriage is not at all compelling and is felt to be in violation of
the Plaintiffs right to equal protection. Likewise, the third State interest, claiming that because
their is no past history of the fundamental right to marriage for same-sex couples it cannot be
granted, is also in violation of the Plaintiffs right to equal protection. This Court points to
Loving v. Virginia (1967) in order to historically demonstrate the States violation of the Equal
Protection Clause.
As in Loving, the State considers and applies a very narrow understanding of what it
considers a constitutionally protected right to marriage. In this case, the State has narrowly
applied a protection of the right to marriage only to opposite-sex couples. In Loving the State
also narrowly applied a protection of the right to marriage, limiting its understanding to only be
applicable to same-race couples. The Court in Loving ruled, as it does now, that such a narrow
application of the right to marriage is unconstitutional since it discriminates on the basis of

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immutable qualities. This Court dismisses the States assertion that same-sex couples are seeking
some distinctly separate and new fundamental right, and maintains that the State is actually
merely prohibiting the exercise of an already established fundamental right to marriage solely on
the basis of immutable qualities -- sexual orientation.
Moreover, the Court in Loving did not consider the established tradition and history of
racially pure marriages to be a compelling interest when restricting fundamental rights. As in
Loving, the state of Utah is asserting that its established tradition and history of opposite-sex
couples is compelling enough to warrant the prevention of same-sex marriages. This Court
would point out that before the Loving case was decided, interracial marriage had no traditional
or historic precedent within the state of Virginia.
The Court, having addressed the arguments put forth by the State, does not find a
legitimate or compelling interest for Section 30-1-2, Section 30-1-4.1, or Amendment 3. The
Court would now like to take this opportunity to clarify its application of judicial scrutiny, when
determining what it considers to be the States violation of the Plaintiffs right to equal
protection. The Court would like to focus its attention on the States claim that Section 30-1-2,
Section 30-1-4.1, and Amendment 3 do not violate the right to marriage since gays and lesbians
are still allowed to marry members of the opposite-sex.
The States assertion is a complete violation of equal protection on the basis of gender
discrimination. The State, by legally permitting only opposite-sex unions, has implied a valued
preference for opposite-sex couples on the basis of gender. The Court points to Craig v. Boren
(1976) where intermediate scrutiny was applied to laws that discriminate on the basis of gender.
So too here, the Court asserts that Section 30-1-2, Section 30-1-4.1, and Amendment 3
discriminate against same-sex couples on the basis of their gender.
The Court recognizes the context of federalism that this case operates within. We
continue to recognize and respect a states right to create, regulate, and enforce its own laws that
reflect the values and concerns of its citizens. However the right of creating, regulating, and
enforcing state laws by the states themselves is not without limit. When state laws are in question
of violating fundamental rights protected within the Constitution, we have reserved the right of
judicial review. The question then of whether states can ban same-sex marriage is dependent

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upon whether such a ban prevents same-sex couples from exercising the fundamental right of
marriage. This Court has found that such a ban does prevent same-sex couples from enjoying the
fundamental right of marriage as protected by the Due Process Clause. The Court also finds such
state bans to be in violation of the Equal Protection Clause, since they are predicated on the
discrimination of gender.
We uphold, therefore, that Section 30-1-1, Section 30-1-4.1, and Amendment 3 prohibits
the Plaintiffs right to marriage as protected under the Due Process and Equal Protection Clause.
This Court finds no important interest that the State can put forth to justify such a violation, and
so the judgement of the US District Court of Utah is affirmed.
It is so ordered.