10th Circuit gay marriage ruling: relevance for poly case?
On Wednesday the federal 10th Circuit Court of Appeals, which includes Utah in its jurisdiction, upheld a Utah judge allowing gay marriage. This is the highest court yet to declare that same-sex marriage is a right. Other federal courts at this level are also considering the issue. Their decisions will pave the way for it to go to the Supreme Court for a nationwide ruling.
The decision was 2-1, by a three-judge panel (subset) of the full court. Here's their complete ruling.
This also happens to be the same federal appeals court that will hear any appeal of the Kody Brown family's polygamy/polyamory case.
Remember about that? Last December a Utah federal judge ruled for the Browns, saying that Utah's law against bigamy (merely living with another partner while married) was overly broad, and that while the state does not have to recognize multiple relationships as marriages, it cannot outlaw them. Here's my coverage of that ruling with links to more. The State of Utah has not yet appealed the Brown ruling; another part of that case is still pending.
After Wednesday's gay-marriage ruling, some buzz went around the polywebs that it might ease the way to recognition of multiple marriage, based on language such as this:
We nonetheless agree with plaintiffs that in describing the liberty interest at stake, it is impermissible to focus on the identity or class membership of the individual exercising the right.
To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question
[A state] cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry, nor may it deny the same status and dignity to each citizen’s decision
Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.
But to many others, that looked like a stretch.
Longtime legal observer In Finity (infinity_8p AT yahoo.com) read the whole ruling and posted this on the PolyLegal Yahoo group (reprinted with permission):
10th CCA OKs SSM, But Slams Polys
Poly activists will be keenly interested in this steaming load of bullshit from pages 44 and 45 of the ruling:
Utah’s ban on polygamy, for example, is justified by arguments against polygamy. See Utah Const. art. III (“[P]olygamous or plural marriages are forever prohibited.”); see also Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985) (concluding that “the State is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage” based on its “commitment to a system of domestic relations based exclusively upon the practice of monogamy” which is “inextricably woven into the fabric of our society” and “the bedrock upon which our culture is built” (quotation omitted)).
The 10th Circuit is basically saying that banning same-sex marriage is invidious discrimination and unconstitutional, but adding dicta (text that is not directly relevant to the ruling and thus isn't legally binding) that is dripping with prejudice against polys, hypocritically denying that the very same type of prejudice and bigotry is unconstitutional when those icky polys are the ones being discriminated against.
Despite this disrespectful dicta, it should be kept firmly in mind that tangential statements like this can be and often are reversed when the very same court has to face the issue directly. The 10th Circuit did not face the issue directly in Potter v. Murray City - that case did not raise equal protection and due process objections to a ban on poly marriage. And another 10th Circuit case, Bronson v. Swensen (500 F.3d 1099 (2007)), also failed to pursue due process and equal protection attacks against Utah's prohibition of poly marriage. Both cases relied instead on legally dubious attacks such as the right to free exercise of religion, which failed miserably. As of today there has been no competent, sophisticated attack against any legal prohibition of poly marriage in any U.S. federal court.
Today's 10th Circuit decision does mark an important milestone in the fight for same-sex marriage. This is one of the many important same-sex marriage decisions that will be of great interest to those poly activists preparing to competently attack the constitutionality of legal prohibitions against poly marriage. It's well worth reading!
I have to disagree with In Finity's hot response. Right after the section he quoted above, the court writes "Similarly, barring minors from marriage may be justified based on arguments specific to minors as a class." It seems clear that the court was not denouncing polygamy/polyamory as such, but was describing past cases in which marriage was denied to certain classes based on actual arguments of harm given as justification. The court said that such precedents do not allow the banning of gay marriage, because in this case, the arguments for harm fail. The soundness of the arguments against polygamy and marriage or minors is not considered here, merely that the court had used such arguments to justify a ruling against a class.
Meanwhile, the Brown family's reality show Sister Wives just began its fifth season.