Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review
Since the Supreme Court’s decision in United States v. Windsor last summer, two questions have been on many court watchers’ minds. First, after Windsor articulated a lengthy reasoning for its decision to strike down the Defense of Marriage Act, under what standard of review will courts evaluate laws that discriminate against same-sex couples? Second, can the standard for invalidating the federal Defense of Marriage Act (DOMA) under the Fifth Amendment be applied to States through the Fourteenth Amendment, or even be enunciated in a meaningful way? The Supreme Court’s current line of jurisprudence on constitutional problems that implicate same-sex issues necessitates that these two questions be considered and answered together, as the United States District Court in Utah did in Kitchen v. Herbert. Ultimately, the Kitchen case shows that the reasoning used in Windsor might not have been the soundest way to analyze the issues presented, and that there are alternative lines of reasoning that better support same-sex couples’ efforts to overturn state bans on gay marriage.
Everything But the Kitchen Sink
Three same-sex couples initiated the Kitchen case in federal court in an attempt to overturn Utah’s “Amendment 3” – a ban on same-sex marriage and domestic partnerships. Amendment 3, like many similar constitutional referenda passed in 2004, added a constitutional provision that limits “marriage” to the “legal union of one man and one woman,” reinforcing a 1977 Utah legislative act that rendered any attempted union outside those bounds as unenforceable. The plaintiffs brought suit challenging Amendment 3 as an unconstitutional limitation on their individual rights under the Fourteenth Amendment of the United States Constitution. The State of Utah countered that Amendment 3 was a legitimate exercise of the State’s traditional power to regulate and define marriage.
Both the plaintiffs and the State attempted to use the recent Windsor decision to their advantage. The plaintiffs argued that the Court’s reasoning under the Fifth Amendment – striking down DOMA as violative “of the liberty of the person” – ought to be applied to their case, and to the state of Utah under the Fourteenth Amendment. On the other hand, the defendants argued that Windsor’s acknowledgment of marriage as traditionally within the purview of the states militates a denial of all the plaintiffs’ constitutional claims. Despite the parties’ attempts to use all arguments available, the court in Kitchen declined to take up either side’s argument on this point because “[t]he Windsor court did not resolve this conflict in the context of state-law prohibitions of same-sex marriage.” However, the court in Kitchen did briefly acknowledge that “important federalism concerns . . . are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
Rather than attempt to cabin the case under Windsor’s lengthy and sometimes tortuous reasoning, the order in Kitchen properly struck out, on its own terms, to invalidate Amendment 3 under a body of comparatively more established and workable (albeit contested) lines of jurisprudence. Citing Planned Parenthood v. Casey, the court placed marriage in the realm of “the most intimate and personal choices a person may make in a lifetime . . . central to personal dignity and autonomy [and] the liberty protected by the Fourteenth Amendment,” and relied in part on Loving v. Virginia to declare that a state cannot prohibit same-sex couples from engaging in these fundamental rights. Therefore, since the plaintiffs in Kitchen were merely seeking access to an existing fundamental right under Casey and Loving, the enjoyment of which the state was limiting to one group of persons (i.e., opposite-sex couples), Amendment 3 was subject to strict scrutiny.
Under a strict scrutiny analysis, Amendment 3 could have only survived if it were “narrowly tailored to serve a compelling state interest.” However, Amendment 3 did not even meet the relatively lax standards of rational basis review, because its practical effect was merely to prevent same-sex couples from gaining the benefits of marriage. Accordingly, the court found that Amendment 3 did not actually further the state’s interest in procreation, child-rearing, “proceeding with caution,” or preserving a “traditional” definition of marriage, since it merely prevented one class of persons from marrying and so was not a suitable means to achieve these laudable ends.
Interstices of the Fourteenth Amendment and the Unworkable “Unusual Discrimination” Standard
Important in the Kitchen court’s order is the absence of any reliance on Windsor as providing a different or better standard than Casey and Loving for evaluating homosexuals as a “class” under the Fourteenth Amendment. In fact, in its order, the District Court refused to go the well-known route of “animus” under Equal Protection review or the relatively unknown route of “unusual discrimination” revived in Windsor. The “animus” line of reasoning was first applied to homosexuals in the case of Romer v. Evans, and the Supreme Court has intimated that such “discriminations of an unusual character” may subject a law to “careful consideration.” If this careful consideration reveals that a law’s “design, purpose, or effect” is to “impose inequality,” then the traditional three-tiered approach to equal protection review is inapplicable, since such laws are simply “not within our constitutional tradition.”
Although in theory this may sound agreeable to lawyers because it is a changeable set of malleable standards, in practice, this standard of “unusual discrimination” is unworkable because it is not a standard at all. The judicial system often prefers bright-line rules and standard-based tests when possible, since they provide both familiarity and more predictable results, but the characteristics of an “unusually discriminatory” law have never been clearly enunciated. To apply “unusual discrimination” is to venture into a legal realm without precise guidance. Moreover, the District Court in Kitchen invalidated a state constitutional amendment passed by a majority of Utah voters. The import of the manner of passing the law (popular referendum) and the invalidation of it (the federal courts) cannot be overstated. Thus, the court in Kitchen could not base its decision on the pliable standards of unusual discrimination or animus, but rather used the relatively settled line of jurisprudence concerning fundamental rights and equal protection. This body of case law on substantive due process, in turn, made it unnecessary to consider the difficult standard of “unusual discrimination” resuscitated by Windsor.
Granted, many contest the line of substantive due process jurisprudence first enunciated in Lochner v. New York, added to in Eisenstadt v. Baird, and, perhaps most notably expanded in Lawrence v. Texas. In fact, some would likely argue that “substantive due process” is just as malleable as “unusual discrimination.” However, substantive due process is firm in one important way: once a right is recognized as fundamental under the Fourteenth Amendment, only the stringent standard of “narrow tailoring” can save a law that curtails that fundamental right.
The crucial component of that legal argument for same-sex cases, as demonstrated in Kitchen, is framing the issue of marriage as a fundamental right that protects both heterosexual and homosexual couples. However, as the court demonstrated in Kitchen, this framework is within the bounds of reason and constitutional law. In particular, same-sex persons are qualified to marry (capable of forming the commitment necessary of married persons and enjoying the benefits of marriage); are seeking access to an existing right, marriage, not the invention of a new right; and are merely applying this right to a new set of facts (the acknowledgment that gays and lesbians are capable of developing “committed and intimate” relationships). In light of this, it was reasonable for the court to find that the fundamental right to marriage “protects [the] choice of a same-sex partner.”
The Future of Windsor and Same-Sex Marriage Lawsuits
Same-sex marriage lawsuits are moving relatively quickly through the judicial system, in contrast to the typical, tangled courthouse morass. Although this is an exciting prospect for the plaintiff’s bar, litigants must not overreach by rushing the legalization of same-sex marriage, or building their cases on the shaky ground of unsettled constitutional doctrine. In Windsor, the Supreme Court revived the standard of “unusual discriminations” and its “careful consideration,” but no normalized metric exists by which to judge these discriminations, nor the extent of their “unusualness.” Additionally, same-sex marriage cases inherently implicate an unsettled area of constitutional law, no matter how one approaches them, precisely because they are such a recent legal development. Of course, as same-sex marriage cases beat a hasty path to the nation’s highest court, further explanation and use of this standard is possible. However, many courts, like the district court in Utah, will likely feel constrained by precedent and unsure how to apply “careful consideration” to “unusual discriminations,” and the Supreme Court is likely to balk at officially adding a perceived “fourth tier” to equal protection analysis in the future.
Disputed as it might be, due process remains the preferable alternative to pursue in these cases because the weight carried by “fundamental rights” and their constitutional implications far exceeds that of “unusual discriminations.” Articulation of marriage as a fundamental right is thus preferable to the use of the “unusual discrimination” standard. Once a right is articulated as fundamental, the standard of review of laws affecting that right consequently increases to a known and workable level. Applying the level of scrutiny concomitant with fundamental rights, laws infringing on the right of same-sex couples to marry will inevitably fail the question of narrow tailoring to achieve a compelling end. The issue that awaits resolution by the Supreme Court, then, is whether marriage, as articulated by the court in Kitchen, is a fundamental right enshrined by the Fourteenth Amendment’s guarantee of Due Process.
 133 S.Ct. 2675 (2013).
 In Bowers v. Hardwick, 108 S.Ct. 2841 (1986), the Court upheld a Georgia anti-sodomy law on the grounds that the Fourteenth Amendment did not protect sex acts that a state wished to criminalize. Then, in Romer v. Evans, 116 S.Ct. 1620 (1996), the Court invalidated a Colorado state-wide prohibition on laws granting special protections to homosexuals and bisexuals. Finally, in Lawrence v. Texas, 123 S.Ct. 2472 (2003), the Court reversed Bowers and struck down a Texas anti-sodomy statute on the grounds that the Fourteenth Amendment does indeed protect private consensual sex acts between adults.
 Kitchen v. Herbert, 2013 U.S. Dist. LEXIS 179331 (D. Utah. Dec. 20, 2013), stay denied by Kitchen v. Herbert, 2013 U.S. Dist. LEXIS 180087 (D. Utah Dec. 23, 2013), stay granted by Herbert v. Kitchen, 187 L. Ed. 2d 699 (2013).
 Utah Const. Art. I, § 29; Utah Code Ann. § 30-1-4.1. Worried that their own state supreme courts, like that of Massachusetts in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, would invalidate laws against same-sex marriage under their respective state constitutions, many states passed similar constitutional provisions in the 2004 general elections.
 U.S. Const. Amend. 14, § 1 provides “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
 Kitchen, supra note 2, at 26.
 Windsor, supra note 1, at 2684.
 Kitchen, supra note 2, at 20.
 Windsor, supra note 1, at 2691.
 Kitchen, supra note 2, at 18–19.
 Id. at 20.
 Id. at 22.
 Id. at 28 (quoting Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992)).
 Id. at 21 and 46 (quoting Loving v. Virginia, 87 S.Ct. 1817, 1818 (1967)).
 Id. at 52 (citing Reno v. Flores, 113 S. Ct. 1439 (1993)).
 Id. at 53, 56.
 Id. at 70–80.
 See Romer, supra note 2.
 Kitchen, supra note 2, at 63.
 Id. at 63 (quoting Romer, supra note 2, at 1627).
 Other than that unusual discriminations are often “hostile,” a relative term similar to “animus.” See Bell’s Gap R. Co. v. Com. of Pennsylvania, 134 U.S. 232, 237 (1890). See also, Kitchen, supra note 2, at 67 (indicating that the court was hesitant to apply the unusual discrimination standard for lack of clarity).
 According to the court, 66% of voters approved of Amendment 3. Kitchen, supra note 2, at 13.
 Justice Scalia’s dissents often demonstrate the strong line of reasoning curtailing the doctrine itself. See, e.g., Lawrence v. Texas, supra note 2, at 2491-2 (Scalia, J., dissenting), for a summary of his objections to substantive due process issues. For a brief panoply of substantive due process cases, see Lochner v. New York, 25 S. Ct. 539 (1905); Eisenstadt v. Baird, 92 S. Ct. 1029 (1972); and Lawrence v. Texas, supra note 2.
 See, e.g., Reno, supra note 11.
 See Kitchen, supra note 2, at 45 (explaining Turner v. Safley, 107 S. Ct. 2254 (1987) (finding marriage important irrespective of its relationship to procreation because it was an expression of emotional support and public commitment)).
 Id. at 45–47.
 Id. at 48–49.
 Id. at 52.
 For example, Hollingsworth v. Perry moved from California district court to the U.S. Supreme Court in four years, and Windsor raced to the Supreme Court in just two.
 For an excellent explanation of the Court’s reasoning under this theory in Windsor, see Colin Pool’s recent blog article, available here: https://uclawreview.org/2014/01/02/cracking-windsors-code-the-unusual-judicial-review-standard-of-united-states-v-windsor-and-its-potential-impact-on-future-plaintiffs.
 Regarding unusual discrimination in the popular referendum on Amendment 3, Judge Shelby wrote: “It is unclear how a mix of animus and good intentions affects the determination of whether a law imposes a discrimination of such unusual character that it requires the court to give it careful consideration.” Kitchen, supra note 2, at 67.