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View Diary: Tenth Circuit becomes first federal appeals court to find constitutional right to same-sex marriage (106 comments)

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  •  The opinion includes (24+ / 0-)

    an excellent discussion of the Court's sexual orientation case history:

    The Supreme Court’s sexual orientation jurisprudence further precludes us from defining the fundamental right at issue in the manner sought by the appellants. In Lawrence, the Court struck down as violative of due process a statute that prohibited sexual conduct between individuals of the same sex. The Court reversed Bowers v.
    Hardwick, 478 U.S. 186 (1986), which in upholding a similar statute had framed the question as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id. at 190. The Lawrence Court held that this framing “fail[ed] to appreciate the extent of the liberty at stake” and “misapprehended the claim of liberty there presented to it.” 539 U.S. at 567. The Court acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral,” but held that its obligation was “to define the liberty of all, not to mandate our own moral code.” Id. at 571 (quotation omitted). “[B]efore 1961 all 50 States had outlawed sodomy,” yet “[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Id. at 572 (quotation omitted). The Court firmly rejected Bowers’ characterization of the liberty at issue: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. at 567. The Court’s rejection of the manner in which Bowers described the liberty interest involved is applicable to the framing of the issue before us. There was clearly no history of a protected right to “homosexual sodomy,” just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appellants is too narrow. Just as it was improper to ask whether there is a right to engage in homosexual sex, we do not ask whether there is a right to participate in same-sex marriage.

     We must also note that Lawrence itself alluded to marriage, stating that “our laws and tradition afford constitutional protection to personal decisions relating to marriage,  procreation, contraception, family relationships, child rearing, and education.” 539 U.S. at 574. The Court quoted Casey’s holding that matters “involving the most intimate and  personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment” and ruled that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539 U.S. at 574 (quotation omitted).

    Opinion of the 10th Circuit (PDF)

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