The majority [of the 10^th Circuit Court of Appeals] held that “the Fourteenth Amendment protects the fundamental right to marry” and that “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

Today[June 25] the 10^th Circuit Court of Appeals issued an important ruling on Utah’s marriage amendment. This is the first time a circuit court has ruled on marriage since the U.S. Supreme Court’s ruling on the federal Defense of Marriage Act (DOMA) this time last year. In a 2-1 split decision, the 10^th circuit ruled that Utah’s marriage amendment defining marriage as the union of a man and a woman violates the 14^th Amendment of the U.S. Constitution.

The majority held that “the Fourteenth Amendment protects the fundamental right to marry” and that “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” The decision will almost certainly be appealed.

Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?

The only way the 10^th Circuit could reach its decision today was to smuggle in a view of marriage that sees it as an essentially genderless institution and then declare that the Constitution requires that the States (re)define marriage in such a way.

But our Constitution is silent on what marriage is. And there are good arguments on both sides of this debate. Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution.

Indeed, this is the message that Judge Paul Kelly delivered in his dissenting opinion in today’s case. Quoting Supreme Court Justice Samuel Alito, Judge Kelly explains: “‘Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,’ at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage.”

Kelly continued:

The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender.

Read More