The Denver-based U.S. 10th Circuit Court of Appeals denied an appeal of U.S. District Judge Robert Shelby’s December 2013 ruling that struck down Utah’s voter-approved ban on same-sex marriage. The decision marks the first time that a federal appeals court has ruled that bans on same-sex marriage violate the U.S. Constitution.
The court’s ruling affects not only Utah, but other states within its jurisdiction, including Colorado, Kansas, Oklahoma, Wyoming and New Mexico, where gay marriage is already legal. However, the court’s panel immediately stayed its 2-1 decision, pending further legal challenges that could reach the U.S. Supreme Court.
The Utah Attorney General’s Office announced Wednesday that it plans to file a legal petition asking the nation’s highest court to review the case.
“Although the Court’s split 2-1 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,” the AG’s Office said in a statement.
Gov. Gary Herbert said he’s grateful for the stay, which gives his office and other appellants more time to review the ruling, as well as their options going forward. He said the state will appeal the ruling to the Supreme Court and may also ask the full 10th Circuit Court to hear the case.
But the governor called the ruling itself a disappointment.
“I believe states have the right to determine their own laws regarding marriage,” he said in a statement.
Human Rights Campaign president Chad Griffin countered that the state’s 2004 ban on same-sex marriage does nothing to strengthen or protect anyone’s marriage.
“Instead, it singles out thousands of loving Utah families for unfair treatment simply because of who they are,” Griffin said in a statement.
Two of the three judges on the court’s panel agreed. They found that the 14th Amendment protects the fundamental due process and equal protection rights to marry, establish and raise a family and enjoy the full protection of a state’s marriage laws.
“A state may not deny 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 court said in its majority opinion.
There can be little doubt, the court said, that the right to marry is a fundamental liberty.
The majority opinion went on to cite a landmark U.S. Supreme Court ruling, which found that the U.S. Constitution protects the right to privacy:
“[Marriage is] older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
In his dissenting opinion, Judge Paul J. Kelly, Jr., said the U.S. Constitution is silent when it comes to the regulation of marriage. Instead, that power is left to the states, as long as it’s consistent with federal constitutional guarantees, he said.
“If the States are 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 government on its head,” Kelly wrote.
The appellants in the case, including Herbert and Utah Attorney General Sean Reyes, have suggested that the ruling will place courts on a “slippery slope” toward recognizing other forms of currently prohibited marriages.
But same-sex marriages differ in at least one key respect from polygamous or incestuous marriages, the appeals court ruled:
“[The] Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships … and to the public manifestations of those relationships.”
To read the 10th Circuit’s ruling, go to: www.ca10.uscourts.gov/opinions/13/13-4178.pdf.