It is only getting harder to deny the conclusion of last summer's Windsor decision defining marriage as a due-process right of any couple. In the last two days, federal judges in Oregon and Pennsylvania came to the same inevitable conclusion as Judge Robert Shelby did in Utah last December. In recent months 14 federal judges have ruled against state same-sex marriage bans, and in some cases the states didn't even bother to defend their laws in the wake of Windsor.
And now yet another Utah judge has gotten into the act. U.S. District Court Judge Dale Kimball, a former BYU law professor, ruled Monday that the state cannot deny marital rights to the same-sex couples who married in Utah during that two-week period at the end of 2013. Kimball's decision has no bearing on the Amendment 3 case Judge Shelby decided, but his ruling rests squarely on the precedent of the Windsor case: "As in Windsor, the State's decision to put same-sex marriages on hold 'deprive(s) some couples married under the laws of their State, but not other couples, of both rights and responsibilities'," Kimball wrote.
Attorneys arguing for Utah continue to cling to other language in Windsor that reserves the right of states to define marriage. States still can define marriage, as long as it is applied equally to all people. The state can say marriage requires classes on managing relationships. The state can say no one gets a marriage license on the weekend. But it can't say marriage is for some couples and not for others. This is the reality of Windsor no reasonable federal jurist will deny.