June 25, 2014 | by Chris Johnson
HISTORIC: Appeals court rules against Utah marriage ban
gavel, gay news, Washington Blade, justice

A federal appeals court has struck down Utah’s ban on same-sex marriage (Photo by Bigstock).

The U.S. Tenth Circuit Court of Appeals on Wednesday struck down Utah’s ban on same-sex marriage, becoming the first appeals court to rule on same-sex marriage since the Supreme Court’s decision against the Defense of Marriage Act.

In a 2-1 decision, a three-judge panel on the Tenth Circuit ruled Utah’s ban violates equal protection rights under the Fourteenth Amendment to the U.S. Constitution. Judges Jerome Holmes and Carlos Lucero were in the majority, and Judge Paul Kelly Jr. was the dissent.

Writing for the majority in a 65-page decision, Lucero determined the district court that initially struck down Utah’s ban on same-sex marriage in December was correct in ruling the ban violates the Fourteenth Amendment.

“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws,” Lucero writes. “A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

As with other decisions from lower courts, the decision makes heavy use of the U.S. Supreme Court’s decision against DOMA, saying the evolution of the nation’s understanding of the Constitution and gay people is what enables the court to affirm Utah’s same-sex marriage ban is unconstitutional.

“A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable,” Lucero writes. “A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society.”

But same-sex couples won’t be able to marry immediately in Utah. In light of the U.S. Supreme Court’s decision to stay same-sex weddings in Utah pending appeal following the district court ruling, the judges incorporated their own stay as part of their decision.

Utah Gov. Gary Herbert and Attorney General Sean Reyes intend to keep the fight up against marriage equality in their state — even if it takes them all the way to the U.S. Supreme Court.

Missy Larsen, a spokesperson for the attorney general, said the decision is currently under review, but made clear the state’s intentions to continue fighting the lawsuit.

“Although the Court’s 2-1 split decision does not favor the State, we are pleased that the ruling has been issued and takes us one step closer to reaching certainty and finality for all Utahns on such an important issue with a decision from the highest court,” Larsen said. “For that to happen, the Utah Attorney General’s Office intends to file a Petition for Writ of Certiorari to the United States Supreme Court.”

It’s possible the attorney general could appeal to the full 10th Circuit as opposed to taking three-judge panel’s decision up with the Supreme Court. Larsen said whether the attorney general will take that intermediate step “has yet to be determined.”

In his 21-page dissent, Kelly writes the majority erred in its decision becaus Baker v. Nelson — a 1970s case seeking marriage equality that the Supreme Court refused to hear for lack of federal question — holds precedent despite subsequent court rulings in favor of gay rights.

“None of these developments can override our obligation to follow (rather than lead) on the issue of whether a state is required to extend marriage to same-gender couples,” Kelly said. “At best, the developments relied upon are ambiguous and certainly do not compel the conclusion that the Supreme Court will interpret the Fourteenth Amendment to require every state to extend marriage to same-gender couples, regardless of contrary state law.”

Kelly concludes his dissent by writing judges “should resist the temptation to become philosopher-kings” by imposing their views under the guise of the Fourteenth Amendment.

Although the judges are split on the constitutionality of Utah’s marriage ban, they did affirm Herbert and Reyes have standing in the case to appeal the lawsuit.

Because the Salt Lake City clerk, one the named defendants in the case, didn’t appeal the case, there was a question of whether the Herbert and Reyes could move forward because they aren’t responsible for distributing marriage licenses.

But Lucero and Holmes determined and Kelly concurred the governor and the attorney general have standing because of their authority over county clerks.

“We conclude that the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and Amendment 3,” Lucero writes.

The 10th Circuit’s decision to strike down the bans on same-sex marriage won’t come as a surprise to anyone who observed the oral arguments in the case in April.

Lucero and Holmes expressed skepticism at the time over the constitutionality of the state’s law, but Kelly seemed to side with the state. Lucero was appointed by Clinton, Holmes was appointed by George W. Bush and Kelly was appointed by George H.W. Bush.

Also before the same three-judge panel on the 10th Circuit is another lawsuit, known Bishop v. Smith, which is challenging Oklahoma’s ban on same-sex marriage. Court Clerk Elisabeth Shumaker told the Washington Blade she has no information about the Oklahoma decision being handed down and didn’t expect a ruling on that state’s marriage ban on the same day as the Utah decision.

The challenge to the law was brought last year by three Utah couples – Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge — who were represented by the law firm of Magleby & Greenwood. The couples either wished to be married in Utah or were legally married elsewhere and wanted their home state to recognize their marriage.

After U.S. District Judge Robert Shelby ruled in favor of same-sex couples in December, Herbert and Reyes appealed the case to the U.S. Tenth Circuit of Appeals. The National Center for Lesbian Rights joined with plaintiffs in support of the litigation.

Peggy Tomsic, an attorney with Magelby & Greenwood, who delivered oral arguments on behalf of the plaintiff same-sex couples, said the decision “affirms the fundamental principles of equality and fairness.”

“As the Court recognized, these families are part of Utah’s community, and equal protection requires that they be given the same legal protections and respect as other families in this state,” Tomsic said. “The Court’s ruling is a victory not only for the courageous couples who brought this case, but for our entire state and every state within the Tenth Circuit.”

Now that the 10th Circuit has deemed Utah’s ban on same-sex marriage is unconstitutional, the bans on marriage equality in the other three states within the circuit are deemed especially vulnerable.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the 10th Circuit will be “enormously helpful” in legal challenges against same-sex marriage bans in Kansas, Wyoming, Colorado and Oklahoma.

“The short answer is that if the Tenth Circuit ruling is permitted to stand without further review, or if the Supreme Court affirms it, state marriage bans in other Tenth Circuit states will be history,” Minter said.

Utah voters in 2004 approved its state constitutional ban on same-sex marriage, known as Amendment 3, by a margin of 65.8 percent to 33.2 percent. It bans both same-sex marriage and marriage-like unions.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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