Utah same-sex marriage decision 'begs the question'

The 10th U.S. Circuit Court of Appeals' recent 2-1 decision in the Utah same-sex marriage case, Kitchen v. Herbert, 13-4178, holds that same-sex couples have a "fundamental right" to marry, essentially because opposite-sex couples do. Coincidentally, I recently received an email advertising continuing legal education which addressed the proper use of the phrase "beg the question," noting that it has traditionally meant: "to base a conclusion on an assumption that is as much in need of proof or demonstration as the conclusion itself." LawProse Lesson 167, June 17, 2014. Because the Kitchen majority fails to show that same-sex marriage, like traditional marriage, has the deep roots in history and tradition necessary to be a fundamental right, its conclusion appears to beg the question.

That opinion held that Utah's limitation of marriage to opposite-sex couples violates the 14th Amendment of the U.S. Constitution, largely basing its ruling on the U.S. Supreme Court's opinions in Loving v. Virginia, 388 U.S. 1 (1967), and Zablocki v. Redhail, 434 U.S. 374 (1978), which held that opposite-sex couples have a fundamental right to marry, Lawrence v. Texas, 539 U.S. 558 (2003), which held that private homosexual conduct between consenting adults could not be criminalized, and United States v. Windsor, 133 S. Ct. 2675 (2013), which held Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional.

However, the Kitchen majority fails to squarely address whether the plaintiffs meet the criteria required by the Supreme Court in order to find a fundamental right. Washington v. Glucksberg, 521 U.S. 702 (1997) (the right must be "deeply rooted in this Nation's history and tradition."). Instead, while acknowledging that requirement, the opinion says that the Supreme Court "has discussed the right to marry at a broader level of generality" than would be consistent with requiring that same-sex marriage be deeply rooted in history and tradition before it could be considered a fundamental right. However, none of the cases cited support that conclusion.

Loving and Zablocki involved traditional marriages: "A legal union of a man and woman as husband and wife." Black's Law Dict. (7th ed. 1999) at p. 986; Windsor, 133 S.Ct. at 2689 ("It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage."). But see Black's Law Dict. (9th ed. (abridged) 2010) at p. 831 ("The legal union of a couple as spouses."). Rather than addressing whether a same-sex marriage meets the criteria necessary to qualify as a fundamental right under Glucksberg, the Kitchen majority starts discussing subjects such as whether procreation justifies the same-sex/opposite-sex distinction, inmate marriages, the freedom to choose ones spouse, and childrearing.

The cases that found a fundamental right say that "marriage" has "long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Zablocki, 434 U.S. at 383 (emphasis added), quoting Loving, 388 U.S. at 12. The "long been recognized" language complies with the "deeply rooted in this Nation's history and tradition" requirement for a fundamental right. Such a showing cannot be made in the case of same-sex marriage. Nevertheless, the Kitchen majority "finds" a "fundamental liberty interest in this case (that cannot be) limited to the right to marry a person of the opposite sex," and that the Supreme "Court's other substantive due process cases similarly eschew a discussion of the right-holder in defining the scope of the right." Considering Glucksberg's requirement for "fundamental rights," this reasoning does more than beg the question; it is illusory. See "With Good Reason: An Introduction to Informal Fallacies," by S. Morris Engel (6th ed. 2000) p. 158 ("The fallacy of begging the question is committed when, instead of offering proof for its conclusion, an argument simply reasserts the conclusion in another form.").

Without the "fundamental right" criteria met, Lawrence cannot provide support for same-sex marriage because the opinion says it does not (Lawrence, 539 U.S. at 578 ("[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.")), and the flaw in the Kitchen majority's reliance on Windsor is that case's holding is that the federal government's attempt in Section 3 of DOMA to deny federal recognition to same-sex marriage that is lawful under a state's law violates the 14th Amendment, not that same-sex couples who want to get married in a state that does not define "marriage" to include same-sex couples have a fundamental right to do so.

In Windsor, the same-sex marriage was valid under state law, so the only question was whether the federal government could refuse to acknowledge it as a valid marriage. Thus, the Windsor court's reference to "marriage" was to a legally recognized marriage, as opposed to a same-sex relationship that wanted to be a marriage, and the finding that the lawfully married same-sex couple was entitled to the full benefits of their marriage does not translate into same-sex couples who are not lawfully married under state law being entitled to compel their states to recognize their relationship as a marriage. See Florida Bar v. Went For It Inc., 515 U.S. 618, 639 (1995) (Kennedy, J. dissenting) ("The argument is, it is fair to say, that all are demeaned by the crass behavior of a few.... In a sense, of course, these arguments are circular. While disrespect will arise from an unethical or improper practice, the majority begs a most critical question by assuming that direct-mail solicitations constitute such a practice.").

The Kitchen majority chides the state of Utah for arguing that plaintiffs do not fit the definition of "marriage" in Supreme Court precedent, calling it "wholly circular" and concluding: "Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages." But that analysis underscores the Kitchen majority's begging of the question, because it is exactly the validity of the marriage in Windsor which prevents the reasoning in that case from supporting the Kitchen majority's result. Opposite-sex couples' "fundamental right" to marry does not automatically equate to same-sex couples having the same "fundamental right."