JURIST Guest Columnists Kaley Lentini and Lenore Montanaro, Western New England University School of Law Class of 2014 and Class of 2015, discuss Utah’s recent case that strikes down its anti same-sex marriage law…

“There is no rational connection between Utah’s prohibition of same-sex marriage and its goal of fostering an ideal family environment for a child,” wrote Judge Robert Shelby of the US District Court for the District of Utah in the decision, Kitchen v. Herbert. Judge Shelby courageously struck down a law against same-sex marriages in Utah, holding that the ban on same-sex marriages in Utah was unconstitutional. This decision now affords same-sex families in Utah with the ability to be married. If the same-sex couples choose to marry, the children of same-sex unions are now able to say that they have married parents.

Seven months prior to Judge Shelby’s holding, we, united in solidarity with the millions of American families waiting to know whether their sisters and brothers, mothers, fathers, friends and other relatives, would continue to be humiliated by the injurious language of the once-lawful Defense of Marriage Act (DOMA), were thrilled when the US Supreme Court held that DOMA was unconstitutional on June 26, 2013, in the landmark decision, United States v. Windsor. Because of the Windsor decision, children of same-sex marriages would no longer suffer by having two parents who were in federally unrecognized marriages.

DOMA, signed into law under the Clinton administration, excluded from the federal definition of “spouse” a same-sex partner, preventing same-sex couples from being recognized as married by the federal government. The restrictive and injurious language of DOMA was explicit in DOMA’s Section 3, defining marriage as between “one man and one woman.” The Windsor majority states that DOMA’s “principal purpose is to impose inequality.” Additionally, DOMA forced “same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law.” This differentiation, according to the majority, placed same-sex couples in an unstable position of being in second-tier marriages. It “demeans the couple, whose moral and sexual choices the constitution protects.” Most significantly, the Windsor majority held that DOMA humiliated “tens of thousands of children now being raised by same-sex couples.” This humiliation makes it “even more difficult for children to understand the integrity and closeness of their own family.”

Judge Shelby was tasked with “the narrow question of whether Utah’s current definition of marriage is permissible under the constitution.” This question and predicted answer was outlined by Justice Scalia’s dissent: “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

“Rather than protecting or supporting the families of opposite-sex couples, amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition,” wrote Judge Shelby. “Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples.”

Currently, 17 states legalized same-sex marriages: Illinois, New Mexico, Hawaii, New Jersey, Rhode Island, Minnesota, Delaware, California, Maryland, Washington, Maine, New York, New Hampshire, Vermont, Iowa, Connecticut and Massachusetts. We anticipate that more states will have legal same-sex marriages. Additionally, we believe that more US District Court judges will strike down bans on same-sex marriages. Looking forward, the Utah decision may reach the Supreme Court, giving the court the opportunity to decide whether it will strike down state bans against same-sex marriages. With continued optimism, we hope that if the Supreme Court is presented with the issue of whether a state statutory scheme banning same-sex marriages is consistent with our constitution, that the court looks to the rationality of Loving v. Virginia and holds that banning marriages based on gender and/or an orientation classification violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

The most significant aspect of Justice Shelby’s decision is that it reflects the respect that we, as a society, afford to our families. Specifically, holding that same-sex marriages and opposite-sex marriages are both equally valid benefits both the couple and the couple’s children. The focus for a court should be on strengthening families, not demeaning them. Additionally, the heart of the family is the children. Courts should maintain laws that do not humiliate children, nor put certain children at a disadvantage to others. We hope that courts maintain the traditional value of preserving the family even as the definition of family changes with time.

Kaley Lentini holds a B.A. in Communication and minors in Women’s Studies from Virginia Tech. She has worked for the Hampshire County Probate and Family Court, National Gay and Lesbian Task Force, and Shipman & Goodwin, LLP. She is serving as an editor in Western New England Law Review, working in WNEU Center for Gender and Sexuality Studies, and doing an externship with Magistrate Judge Kenneth Neiman in US District Court for the District of Massachusetts.

Lenore Montanaro holds a B.A. in English in College of the Holy Cross. She is the president of Women’s Law Association in Western New England University School of Law. She won Dean’s Best Brief Award and Best Oral Argument Award in 2013. She has worked for Facchini & Facchini, P.C. and is currently working as a legal clerk in US Attorney’s Office in MA.

Suggested citation: Kaley Lentini and Lenore Montanaro, Focusing on the Families: Utah’s Same-Sex Marriages Strengthens Families , JURIST – Dateline, Feb. 19, 2014, http://jurist.org/dateline/2014/02/lentini-montanaro-marraige-equality.php