Kitchen v. Herbert’s Empirical Analysis

Citation profile

5 federal appellate · 5 district · 1 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 33 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of ma jorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

   2 later decisions quote this exact passage · from the dissent
   e.g. 962 F. Supp. 2d 968 - Obergefell v. Wymyslo · 973 F. Supp. 2d 757 - Deboer v. Snyder

2. “[T]he Supreme Court has stated that a summary dismissal is not binding "when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. 332, 344 , 95 S.Ct. 2281 , 45 L.Ed.2d 223 (1975). Here, several doctrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court’s summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-636 , 116 S.Ct. 1620 , 134 L.Ed.2d 855 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to "demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime.” 539 U.S. 558, 578 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003). As discussed below, the Supreme Courts decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage. As discussed above, the Court's decision in Windsor does not answer the ”

   1 later decision quote this exact passage · from the dissent
   e.g. 973 F. Supp. 2d 757 - Deboer v. Snyder

3. “[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. Here, the challenged statute does not grant marriage benefits to opposite-sex couples. 5 The effect of [Utah’s marriage ban] is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.”

   1 later decision quote this exact passage · from the dissent
   e.g. Baskin v. Bogan