Baskin et al. v. Bogan was handed down by Judge Richard L. Young of the U.S. District Court in the Southern District of Indiana. The judge’s ruling states that Indiana’s refusal to recognize same-sex marriages performed out-of-state violated a couple’s constitutional rights of due process and equal protection.
Citing Justice Anthony Kennedy’s majority opinion in United States v. Windsor (2013), Judge Young said that, in addition to causing tangible harm in the denial of marriage benefits, distinguishing between same-sex and opposite-sex couples under the law also incurs dignitary injury—in other words, harm to the couple’s dignity.
The judge also issued a court order compelling state officials to recognize same-sex marriages.
Immediately after Young’s ruling, Indiana Attorney General Greg Zoeller filed a notice of appeal and submitted an emergency request for a stay of Young’s order. Zoeller said that until the Supreme Court hears the case, it would be premature to abide by Young’s ruling or to change the state of Indiana’s definition of marriage.
Nonetheless, in the hours following the district court’s decision, same-sex couples lined up at county clerk’s offices to receive marriage licenses. Should Zoeller’s stay be sustained, these marriages could later be questioned and no further marriages would occur until further notice.
The Tenth Circuit Court of Appeals came to a similar conclusion in Kitchen v. Herbert. In a 2-1 decision, the court ruled that Utah’s Amendment 3 violated the equal protection and due process rights of same-sex couples guaranteed by the Fourteenth Amendment.
Citing the Supreme Court’s decision in West Virginia Board of Education v. Barnette (1943), the court also said that “an individual’s fundamental rights ‘may not be submitted to vote; they depend on the outcome of no elections.’”
Given that Utah’s Amendment 3 was passed in a statewide referendum, the decision in Kitchen is particularly notable because the court classified same-sex marriage rights as fundamental enough to be protected by Barnette.
Although the Tenth Circuit’s ruling applies to all states within its jurisdiction—Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—the court’s opinion was immediately stayed pending review by the Supreme Court. For now, that means same-sex couples cannot seek marriage licenses.
Attorneys for Indiana and Utah argued that the states have a compelling and historic interest to regulate and define marriage. They also said the states have an interest in linking procreation to marriage.
In response, the Tenth Circuit cited a Utah law that allowed first cousins to marry if they were over 65, or if they were over 55 and unable to produce—suggesting inconsistency in using procreation as a justification. Furthermore, both courts pointed out that truly linking procreation to marriage would exclude many opposite-sex couples who have decided not to, or are unable to, have children.
However, both courts did concede that the states have a historic and legitimate interest in defining marriage.
So what comes next? Utah and Indiana have indicated that they will appeal to the Supreme Court. And Judge Young’s order in Indiana is likely to be stayed until the nation’s highest court is able to rule on the matter.
Andrew Lowy is an intern at the National Constitution Center.
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