In a two to one decision, the 10th Circuit Court of Appeals has upheld the decision by Judge Robert Shelby’s December that found Utah’s Amendment 3, banning same-sex marriage, unconstitutional.
“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. For the reasons stated in this opinion, we affirm. … [Under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.”
As noted by the court in its 108 page ruling, this is the first time the 10th Circuit has taken up the issue of same-sex marriage bans. And while more than 15 federal judges have upheld marriage equality as a fundamental right across the nation, this is the first such appellate court to make such a ruling.
And the court did not mince words about its views that Amendment 3 is “oppressive:”
The drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579. A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. 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.
The court also went directly after Utah’s claims that children of same-sex parents are worse off than children of opposite-sex parents, saying:
“[Bans on same-sex marriage] deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity”
One of the biggest arguments Utah made before the court was that Amendment 3 should be upheld because “the majority of Utah citizens are in favor of it.” The 10th Circuit strongly disagreed, saying that fundamental rights cannot be decided at the ballot box.
“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The court also reemphasized that its ruling (like all other rulings in favor of same-sex marriage) does not in anyway force a religious institution to perform any ceremonies they do not with to.
“We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit.”
The 10th Circuit has placed a stay on its ruling, which means that no further marriages by same-sex couples will take place while Utah decides whether to appeal the ruling (they presumably will) to the U.S. Supreme Court. It could be 2015 before the high court takes up the case, if the court chooses to take it up at all.
Meanwhile, Utah’s second lawsuit over same-sex marriages, which is being brought by the Utah ACLU, is also before the 10th Circuit court. In that case, which has not received a ruling yet, same-sex couples are suing the state for refusing to allow them to legally adopt the children they are already raising. The adoption process was begun while same-sex marriage was legal in Utah, before the stay was put in place.
Elsewhere in the country, a judge in Indiana also ruled today that that state’s ban on same-sex marriage is unconstitutional, and struck down that law.
You can read the full ruling from the 10th Circuit here.
Utah AG Sean Reyes has announced that he is considering an en banc review from the 10th Circuit, rather than appealing directly to the Supreme Court. If granted, it would mean the entire 10th Circuit, rather than the three-judge panel, would consider the ruling.