Court upholds Utah gay marriage ruling

Getty Images

An appeals court ruled Wednesday that a state's gay marriage ban is unconstitutional, the first appellate movement on the issue since the Supreme Court struck down parts of a federal law last year.

The 10th Circuit Court of Appeals agreed with a lower court that Utah's ban violated the Equal Protection clause of the Constitution, the latest step in a process that many expect will bring same-sex marriage back before the highest court in the land.

ADVERTISEMENT
"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," the court wrote in its 2-1 opinion. "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."

The Supreme Court intervened earlier this year to stay the lower decision pending appeal.

The 10th Circuit decided to leave the stay in place in case of another appeal. In addition to Utah, the 10th Circuit covers Colorado, Kansas, New Mexico, Oklahoma and Wyoming.

The office of the attorney general in Utah said it would file a motion with the Supreme Court to hear the case. It also has the ability to ask all the judges on the 10th circuit to rehear the case. 

Utah Governor Gary Herbert (R) expressed disappointment but also signaled the state would appeal.

"As I have always said, all Utahns deserve clarity and finality regarding same-sex marriage and that will only come from the Supreme Court," he said in a statement.

In December, U.S. District Court Judge Robert Shelby became the first judge to strike down a state ban following the Supreme Court's ruling that the Defense of Marriage Act (DOMA) was unconstitutional in defining gay marriage at the federal level as between one man and one woman.

The Supreme Court, at the time, did not rule on the merits of a separate case regarding the constitutionality of state bans, but a number of state courts have cited the United States V. Windsor decision to strike down their own state laws.

The appeals court Wednesday found the decision in Windsor partially applied to the Utah case, because the Supreme Court's conclusion "was not solely based on the scope of federal versus state powers."

“The Windsor majority expressly cabined its holding to state-recognized marriages…and is thus not directly controlling," according to the ruling. "But the similarity between the claims at issue in Windsor and those asserted by the plaintiffs in this case cannot be ignored."

Separately, just minutes before the 10th Circuit's opinion was released, a federal judge in Indiana struck down the state's gay marriage ban.

Gay marriage advocates have a perfect record in court rulings in the last year. Nineteen states and the District of Columbia currently allow same-sex marriage.

Appeals are working their way through the courts in eight other states where judges have struck down bans but have stayed those decisions. In a number of other states, judges have ruled against laws that prevented their state from recognizing gay marriages performed in another state.

President Bill Clinton nominated to the court Judge Carlos Lucero, who wrote the appeals court opinion released Wednesday. Jerome Holmes, who joined the opinion, was appointed by President George W. Bush. 

Paul Kelly, the only judge to dissent, was appointed by George H.W. Bush. 

Kelly concluded there is no fundamental right for same-sex couples to marry and it is therefore a question left to the states. He found that while the Supreme Court has recognized a right to marry, that interpretation had always involved two people of opposite gender. 

"If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head," he wrote in his dissent.

—Updated 3:20 p.m.