Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal.There was also a strong dissent. The Judge dissenting would have held that a state ban on same-sex marriage does not violate the Constitution, saying there is not a consensus about either the implications of Windsor or the same-sex marriage issue more generally.
“We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”The majority ruled that the Utah law is unconstitutional because it restricts the “fundamental” right to marriage under the Fourteenth Amendment, which subjects it to tight “strict scrutiny.” The three interests asserted by Utah – (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers-or at least by a married mother and father-in a stable home”; and (3) “ensuring adequate reproduction” were held compelling, but the law was not “narrowly tailored to their advancement.” The 10th Circuit’s opinion in Kitchen v. Herbert can be read here.