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Tenth Circuit upholds same-sex marriage

A huge step forward.

A federal appeals court ruled Wednesday that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, the a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

But the court stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.

Meanwhile, the state can ask the 10th Circuit Court to re-hear the matter before the full court, according to legal experts.

University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”

It’s the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.

“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said.

If the state asks the 10th Circuit Court to re-hear the matter before the full court, Rosky said he doubts they’ll get a different result, and the request may not even be granted.

The appeals court upheld U.S. Judge Robert Shelby’s December decision, which struck down Utah’s ban on same-sex marriage and prompted more than a 1,000 same-sex couples to marry during a 17-day window before the U.S. Supreme Court issued a stay, halting all such weddings.

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The 10th Circuit Court focused their ruling on the 14th Amendment, which gives equal protection to American citizens, and their reading of the Constitution that the legal rights of married couples has nothing to do with the gender of those in the union.

“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 10th Circuit Court ruled.

“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. 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 appellate court said.

The decision is here. As TPM notes, there’s a separate case before the 10th Circuit on Oklahoma’s gay marriage ban. It’s hard to imagine a different ruling in that case. This decision affects multiple states that fall within the 10th Circuit’s purview, all of which have their own litigation pending. See Freedom to Marry’s litigation page for an overview of the legal cases elsewhere. One that is being watched closely is in the Fifth Circuit, where the appeal of the ruling in the Texas case will be heard; appellants’ opening briefs are due July 9, with responses due 30 days later, no schedule yet for oral arguments. The belief is that if any court is going to stop the winning streak for same sex marriage, it’ll be the Fifth Circuit, because they suck like that. But we’ll see. It’s not completely out of the question that SCOTUS won’t have to rule on this at all, if the lower and appeals courts keep agreeing with each other; by the way, another judge, this on in Indiana, also struck down a state ban on same sex marriage on the same day. We’re a long way from the end of this story, though we’re definitely getting closer. Freedom to Marry, the Deseret News, dKos, the Human Rights Campaign, the Dallas Voice, TPM, the Slacktivist, Texas Leftist, and no doubt many others have more.

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