Read the whole thing here (courtesy of the SL Tribune) – and yeah, emphasis added:
May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?
Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.
The ruling (which I’m still reading) has lots of interesting issues – one of which I find relevant. Some people argue that the Windsor ruling should not be relevant because it stated marriage has traditionally been left to the states. This ruling reads, in part:
The Windsor majority expressly cabined its holding to state-recognized marriages, id. at 2696, and is thus not directly controlling. But the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored. This is particularly true with respect to plaintiffs Archer and Call, who seek recognition by Utah of a marriage that is valid in the state where it was performed. More generally, all six plaintiffs seek equal dignity for their marital aspirations. All claim that the state’s differential treatment of them as compared to opposite-sex couples demeans and undermines their relationships and their personal autonomy.
Of course, the Windsor decision dealt with federal recognition of marriages performed under state law. But with respect to plaintiffs Archer and Call, who were married in Iowa and whose marriage Utah will not recognize under Amendment 3, the analogy to Windsor is particularly apt.
As I read this, the 10th Circuit is arguing that the issue in this case and Windsor are similar enough that Windsor is directly relevant. IOW, even though Windsor recognized that states have historically governed marriage, they still cannot violate the federal Constitution.
The 10th Circuit also recognized that the right to marry is separate from the decision and right to procreate.
Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction. “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted); see also Griswold, 381 U.S. at 485-86 (recognizing right of married individuals to use contraception).
There’s also a moving passage about the ways in which our awareness of rights evolves:
The drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579. A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society
I’m sure there will be much commentary and lots of hysterics from conservatives.
If I were Governor Herbert I’d be asking myself a question – “Do I want my name on the case that legalizes same sex marriage in the US?”