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Congratulations, Judge Kelly --- You Are the First

June 25, 2014

A month ago, as I marveled at the recent, unbroken string of judicial rulings striking down marriage discrimination against same-sex couples, I also wondered what judge (if any) would be the first, post-Windsor, to misread the Constitution and opine that our Nation’s charter allows states to deny marriage equality to gay men and lesbians.  

And today we have our answer.  This dishonorable distinction goes to Judge Paul Kelly, Jr. of the Tenth Circuit, who dissented from his court’s ruling in Kitchen v. Herbert upholding District Judge Robert Shelby’s decision that Utah’s denial of marriage equality to gay people violates their Fourteenth Amendment rights.  In what was a glorious day in the courts for the protection of fundamental rights, the Tenth Circuit’s decision vaulted into cyberspace not long after the U.S. Supreme Court had ruled unanimously in Riley v. California that the Fourth Amendment generally prohibits the police from engaging in a warrantless search of an arrestee’s cell phone.

Having just read the Riley decision when I picked up the Tenth Circuit’s ruling in Kitchen, I was struck by this language from Judge Kelly’s dissent:

“The starting point for a claim that same-gender marriage is required by the Constitution must be the Constitution.  Because the Constitution does not speak to the issue of same-gender marriage – or marriage at all – the next step is to review the Supreme Court’s decisions on the issue.”    

The Fourth Amendment, of course, does not “speak to the issue of” cell phones; indeed, the Framers in their wildest imaginations could not possibly have envisioned such technology.  But the Supreme Court had no problem applying the fundamental privacy principles enshrined in the Fourth Amendment to the issue of warrantless searches of mobile phones.  Indeed, in his ruling for the Court, Chief Justice John Roberts went back to the Framers, noting their abhorrence of “general warrants,” a close kin to the warrantless searches of cell phones at issue in Riley.

It seemed ironic to me that while the Supreme Court had no problem recognizing the relevance of 18th Century constitutional text and history to 21st Century technology, Judge Kelly saw no way to start with the Constitution when marriage equality was at stake.  The excuse that the Constitution “does not speak to the issue of same-gender marriage” misapprehends the nature of that document, which of course is not a laundry list of everything to which its sweeping principles and protections apply.  As Chief Justice John Marshall wrote in McCulloch v. Maryland,

“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

The issue of the constitutional validity of marriage discrimination against same-sex couples starts with constitutional text and history, and the fundamental principles of equal protection and liberty enshrined in the Fourteenth Amendment.  Perhaps if Judge Kelly had started there, we would not be “celebrating” the fact that he is now the first judge since Windsor to get those principles so wrong.  

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