Susan Latta, et al v. C. Otter, et al
FILED OPINION (STEPHEN R. REINHARDT, RONALD M. GOULD and MARSHA S. BERZON) AFFIRMED; REVERSED; REMANDED. Judge: SR Authoring, Judge: RMG , Judge: MSB Concurring, Judge: SR Concurring. FILED AND ENTERED JUDGMENT.  [14-35420, 14-35421, 12-17668]
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OCT 07 2014
Latta, et al. v. Otter, et al. Nos. 14-35420 & 14-35421
Sevcik, et al. v. Sandoval, et al. No. 12-17688
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
REINHARDT, Circuit Judge, concurring:
I, of course, concur without reservation in the opinion of the Court. I write
separately only to add that I would also hold that the fundamental right to
marriage, repeatedly recognized by the Supreme Court, in cases such as Loving v.
Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner
v. Safley, 482 U.S. 78 (1987), is properly understood as including the right to
marry an individual of one’s choice. That right applies to same-sex marriage just as
it does to opposite-sex marriage. As a result, I would hold that heightened scrutiny
is appropriate for an additional reason: laws abridging fundamental rights are
subject to strict scrutiny, and are invalid unless there is a “compelling state
interest” which they are “narrowly tailored” to serve. United States v. Juvenile
Male, 670 F.3d 999, 1012 (9th Cir. 2012) (citing Reno v. Flores, 507 U.S. 292, 302
(1993)), cert. denied, 133 S. Ct. 234 (2012)). Because the inadequacy of the states’
justifications has been thoroughly addressed, I write only to explain my view that
the same-sex marriage bans invalidated here also implicate plaintiffs’ substantive
due process rights.
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Like all fundamental rights claims, this one turns on how we describe the
right. Plaintiffs and defendants agree that there is a fundamental right to marry, but
defendants insist that this right consists only of the right to marry an individual of
the opposite sex. In Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997), the
Supreme Court explained “that the Due Process Clause specially protects those
fundamental rights and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition.” Our articulation of such fundamental rights must,
we are told, be “carefully formulat[ed].” Id. at 722 (citations and quotation marks
However, “careful” does not mean “cramped.” Our task is to determine the
scope of the fundamental right to marry as inferred from the principles set forth by
the Supreme Court in its prior cases. Turner held that prisoners who had no
children and no conjugal visits during which to conceive them—people who could
not be biological parents—had a due process right to marry. 482 U.S. at 94–97.
Zablocki held that fathers with outstanding child support obligations—people who
were, at least according to adjudications in family court, unable to adequately
provide for existing children—had a due process right to marry. 434 U.S. at
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In each case, the Supreme Court referred to—and considered the historical
roots of—the general right of people to marry, rather than a narrower right defined
in terms of those who sought the ability to exercise it. These cases rejected statusbased restrictions on marriage not by considering whether to recognize a new,
narrow fundamental right (i.e., the right of prisoners to marry or the right of fathers
with unpaid child support obligations to marry) or determining whether the class of
people at issue enjoyed the right as it had previously been defined, but rather by
deciding whether there existed a sufficiently compelling justification for depriving
plaintiffs of the right they, as people, possessed.1 See id. at 384 (“[D]ecisions of
this Court confirm that the right to marry is of fundamental importance for all
The third and oldest case in the fundamental right to marry trilogy, Loving,
is also the most directly on point. That case held that Virginia’s anti-miscegenation
laws, which prohibited and penalized interracial marriages, violated the Fourteenth
Amendment’s Equal Protection and Due Process Clauses. 388 U.S. at 2–6. In a
Turner and Zablocki illustrate another important point, pertinent to the
adequacy of defendants’ justifications for curtailing the right. The first of these
cases involved plaintiffs whom the state was entitled to prevent from procreating,
and the second involved those who were unable to support existing offspring
financially. If the fundamental right to marry extends to them, it certainly cannot
be limited only to those who can procreate or to those who, in the eyes of the state,
would form part of an ideal parenting unit.
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rhetorical stroke as uncomprehending as it is unavailing, defendants contend that
lesbians and gays are not denied the freedom to marry by virtue of the denial of
their right to marry individuals of the same sex, as they are still free to marry
individuals of the opposite sex. Defendants assert that their same-sex marriage
bans are unlike the laws in Turner and Zablocki because they do not categorically
bar people with a particular characteristic from marrying, but rather limit whom
lesbians and gays, and all other persons, may marry. However, Loving itself
squarely rebuts this argument. Mildred Jeter and Richard Loving were not barred
from marriage altogether. Jeter was perfectly free to marry a black person, and
Loving was perfectly free to marry a white person. They were each denied the
freedom, however, to marry the person whom they chose—the other. The case of
lesbians and gays is indistinguishable. A limitation on the right to marry another
person, whether on account of race or for any other reason, is a limitation on the
right to marry.2
Defendants are apparently concerned that if we recognize a fundamental
right to marry the person of one’s choice, this conclusion will necessarily lead to
the invalidation of bans on incest, polygamy, and child marriage. However,
fundamental rights may sometimes permissibly be abridged: when the laws at issue
further compelling state interests, to which they are narrowly tailored. Although
such claims are not before us, it is not difficult to envision that states could proffer
substantially more compelling justifications for such laws than have been put
forward in support of the same-sex marriage bans at issue here.
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Defendants urge that “man-woman” and “genderless” marriage are mutually
exclusive, and that permitting the latter will “likely destroy” the former. Quite the
opposite is true. Loving teaches that Virginia’s anti-miscegenation laws did not
simply “deprive the Lovings of liberty without due process of law.” 388 U.S. at 12.
They did far worse; as the Court declared, the laws also “surely . . . deprive[d] all
the State’s citizens of liberty without due process of law.” Id. (emphasis added).
When Virginia told Virginians that they were not free to marry the one they loved
if that person was of a different race, it so grievously constrained their “freedom of
choice to marry” that it violated the constitutional rights even of those citizens who
did not themselves wish to enter interracial marriages or who were already married
to a person of the same race. Id. When Idaho tells Idahoans or Nevada tells
Nevadans that they are not free to marry the one they love if that person is of the
same sex, it interferes with the universal right of all the State’s citizens—whatever
their sexual orientation—to “control their destiny.” Lawrence v. Texas, 539 U.S.
558, 578 (2003).
To define the right to marry narrowly, as the right to marry someone of the
opposite sex, would be to make the same error committed by the majority in
Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which considered whether there
was a “fundamental right to engage in homosexual sodomy.” This description of
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the right at issue “fail[ed] to appreciate the extent of the liberty at stake,” the Court
stated in Lawrence, 539 U.S. at 567. Lawrence rejected as wrongheaded the
question whether “homosexuals” have certain fundamental rights; “persons”—of
whatever orientation—are rights-holders. See id. Fundamental rights defined with
respect to the subset of people who hold them are fundamental rights misdefined.
The question before us is not whether lesbians and gays have a fundamental right
to marry a person of the same sex; it is whether a person has a fundamental right to
marry, to enter into “the most important relation in life,” Maynard v. Hill, 125 U.S.
190, 205 (1888), with the one he or she loves. Once the question is properly
defined, the answer follows ineluctably: yes.
Historically, societies have strictly regulated intimacy and thereby oppressed
those whose personal associations, such as committed same-sex relationships,
were, though harmful to no one, disfavored. Human intimacy, like “liberty[,] [has]
manifold possibilities.” Lawrence, 539 U.S. at 578. Although “times can blind us
to certain truths and later generations can see that laws once thought necessary and
proper in fact serve only to oppress[,] [a]s the Constitution endures, persons in
every generation can invoke its principles in their own search for greater freedom.”
Id. at 578-79.
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We, as judges, deal so often with laws that confine and constrain. Yet our
core legal instrument comprehends the rights of all people, regardless of sexual
orientation, to love and to marry the individuals they choose. It demands not
merely toleration; when a state is in the business of marriage, it must affirm the
love and commitment of same-sex couples in equal measure. Recognizing that
right dignifies them; in so doing, we dignify our Constitution.
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