Gay marriage advocates won a significant court victory Wednesday when a federal appeals court upheld a lower court ruling in Utah that struck down the state's ban on same-sex marriages.
The 2-1 ruling by a panel of the Denver-based 10th Circuit Court of Appeals marks the first time a federal appellate court has upheld same-sex marriage. One year ago, on June 26, 2013, the U.S. Supreme Court struck down portions of the federal Defense of Marriage Act, a landmark ruling that extended federal benefits to gays — though the high court stopped short of ruling that same-sex marriage was a constitutionally protected right.
The Utah decision comes after a string of more than a dozen victories for advocates of gay marriage, including one in Indiana on Wednesday. The Utah ruling was stayed, meaning that gay marriages won't take place while the case is on appeal. But the ruling carries importance because it occurred in a conservative state. Though not binding on other federal appellate courts, the decision is likely to be a factor in future decisions elsewhere, experts said.
"This is a victory for humanity!" a grinning Kate Call, one of the plaintiffs in the case, said at a news conference in Salt Lake City. Another plaintiff, Derek Kitchen, said, "I don't think Utah can deny same-sex couples their right [to marry] for much longer."
"This is the most significant victory in the history of the gay rights movement," said Clifford Rosky, a law professor at the University of Utah, who has closely followed the issue and is board chairman of Equality Utah, a gay rights group. "A federal appeals court has recognized that same-sex couples enjoy the same freedoms as all Americans — the freedoms to marry, establish a family and raise children together. This is a victory not only for the 1,300 same-sex couples who are married in Utah, but for all gay Americans."
Utah will continue the fight to uphold its ban on same-sex marriages all the way to the Supreme Court, state officials said hours after the ruling was released.
"I'm disappointed because I believe states do have a right, through the democratic process, to define marriage," Gov. Gary R. Herbert said at a news conference. However, he added that the ruling was good news because it took the issue a step closer to being resolved by the Supreme Court, which would "bring some finality to this, which is what all people, on all sides of the issue should want — which is what I want."
Technically, the state can appeal to the full appeals court, then, if needed, seek permission to argue before the Supreme Court. Given the flurry of rulings around the country and pending cases on appeal from Oklahoma and Virginia, most people expect the Supreme Court will choose to weigh in.
The 10th Circuit majority was forceful in backing the right for all to marry, regardless of sexual preference.
"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 majority wrote in its decision, posted on the court's website. "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.
"For the reasons stated in this opinion, we affirm."
In his dissent, Judge Paul J. Kelly Jr. warned that the court was overstepping its authority and that states should be able to decide who can marry. "We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment," he wrote.
Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, backed the dissenting judge.
"While we strongly disagree with the two judges in the majority, we are encouraged by the strong defense of marriage articulated by Justice Paul Kelly in his dissent, and especially his defense of the sovereign right of the people of Utah to decide this issue for themselves," Brown said.
A similar case in Oklahoma is pending before the 10th Circuit. A Virginia case that struck down that state's ban has been argued on appeal and a decision is pending.
Utah, one of the most conservative states on the issue of gay rights, found itself in the fray over same-sex marriage when U.S. District Judge Robert J. Shelby struck down its ban on such unions on Dec. 20. State officials sought to stay the ruling, but the 10th Circuit Court rejected that effort on Dec. 22. The Supreme Court ordered a stay on Jan. 6, but the delay was long enough to allow more than 1,000 same-sex couples to marry.
Since the Defense of Marriage Act ruling, federal judges have been unanimous in upholding the right of gays to marry and have struck down bans on the practice, saying they violate the equal-protection clause of the U.S. Constitution. Lower court judges have also frequently cited the Supreme Court's 1967 decision to strike down state laws barring marriage between races in a Virginia case.
Nineteen states and the District of Columbia have legalized gay marriage. Lawsuits have been filed in every other state to legalize gay marriage and related issues.
"The 10th Circuit opinion is very important as the first appeals court to affirm invalidation of a state same-sex ban," said Carl Tobias, a professor at the University of Richmond School of Law in Virginia. The opinion is comprehensive and is likely to influence other appeals courts.
Meanwhile, same-sex marriages began in Indiana on Wednesday after a federal judge struck down the state's ban on them, saying it violated the U.S. Constitution's equal-protection clause. U.S. District Judge Richard Young's ruling did not have a stay on it and couples began marrying immediately.
The Indiana attorney general's office said it would ask for a stay while it appealed the ruling to a higher court.