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  • Sasha Issenberg

December 20, 2013: Utah’s marriage law struck down by federal judge


A federal district court in Utah ruled that the state’s 2004 constitutional amendment banning same-sex marriage was incompatible with the United States Constitution.

That June, the U.S. Supreme Court had refused to make the same judgment about a similar amendment that California’s voters had added to their state constitution. But on the same day the court had struck down part of the federal Defense of Marriage Act, with Justice Anthony Kennedy writing in United States v. Windsor that by denying a married same-sex couple recognition under federal law “demeans the couple, whose moral and sexual choices the Constitution protects.”

Just under six months later, Judge Robert J. Shelby issued his ruling in Kitchen v. Herbert, which had been filed earlier that year by three Utah same-sex couples who argued the amendment passed overwhelmingly by voters in 2004 violated federal due-process and equal-protection guarantees. Ruling in their favor, Shelby leaned overtly on Kennedy’s Windsor opinion to the point of mimicry, writing that state laws “demean the dignity of these same-sex couples for no rational reason.” (For good measure, Shelby also paid homage to an earlier Kennedy opinion, which in 2003 struck down Texas’s ban on sodomy.)

The decision took effect immediately, and gay and lesbian couples mobbed county clerks’ offices that remained open throughout the weekend to issue marriage licenses to those newly eligible. The federal court eventually agreed to the state’s request for a stay, so that it could appeal the decision, but only after 1,360 couples had been able to marry. (An appeals court would uphold Shelby’s ruling the following June.) The major impact of the Kitchen v. Herbert decision would be felt outside Utah, however: Shelby would be only the first judge of many to commander Kennedy’s logic in Windsor to rule that any restriction on the right of same-sex couples to marry was unconstitutional.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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