Like many states, Utah allows men to become the legal father of children born to their wives through assisted reproduction. In 2015, Angie Roe asked Utah to recognize her as the legal mother of a child her wife, Kami Roe, conceived using a sperm donor. The state refused—for the simple reason that Kami and Angie are lesbians. So the Roes took their case to court, alleging a violation of their constitutional rights to liberty and equal protection.
They won, of course—how could they not? As Judge Dee Benson explained, Obergefell v. Hodges requires states to offer same-sex couples the same rights and benefits as opposite-sex couples. In Utah, opposite-sex couples have the privilege of putting a nonbiological father’s name on the birth certificate of his child. Thus, under the Constitution, same-sex couples must be offered the same opportunity.
But Utah didn’t just lose: It got crushed. In his opinion, Benson—a George W. Bush appointee—pointedly noted that the state had failed to provide even a rational basis for “the different treatment of male and female spouses of women who give birth through assisted reproduction involving the use of donor sperm.” When Benson asked attorneys defending the law to justify this exclusion of same-sex couples, they could only say that the state was concerned about the “accuracy of vital statistic records for researchers” and about “making parentage clear.” What does that even mean? Utah’s lawyers couldn’t explain. So they lost.
The Roes’ legal victory, however, wasn’t over. Three months after Benson’s ruling, Utah abruptly dropped the case—presumably deciding that it couldn’t win and that any further appeals would only waste public money. (Taxpayers have already had to pay nearly $100,000 for the state’s doomed defense of its gay marriage ban.) And last Tuesday, the state agreed to pay the Roes more than $24,000 in attorneys’ fees in accordance with federal civil rights law.
On Wednesday, I asked Joshua Block, an attorney with the ACLU who represented the Roes, what he made of Utah’s decision to concede complete defeat so swiftly.
“After the Supreme Court decided Obergefell,” he told me, “there was some question about whether recalcitrant states would try to get around the decision by saying that same-sex couples can marry, but we won’t treat those marriages the same way we treat other marriages.” (Exhibit A: Louisiana Supreme Court Justice Jefferson Hughes III explicitly arguing that his court should reject Obergefell.)
Benson’s ruling, Block explained, “sent a strong message, not only to Utah but also to other states, that married same-sex couples are entitled to all the same benefits and obligations” as married opposite-sex couples. And by agreeing to make the court’s decision permanent, “Utah is acknowledging the reality that they can’t wriggle around Obergefell.”
Not every state has adjusted to the new legal reality as quickly as Utah: Mississippi, for instance, is still wasting taxpayer money defending its blatantly unconstitutional anti-gay adoption ban. But Utah’s complete surrender suggests that remarkably few states believe defying Obergefell is worth the time or money. Red-state Republicans may continue to disenfranchise minorities and block health care for the poor. But their crusade against marriage equality looks increasingly like a thing of the past.
