State Presses Forward with Same-Sex Ruling Appeal amid Praise, Scorn

Citizens Gather at City Creek Park to Celebrate the 10th Circuit Court's decision.
Citizens Gather at City Creek Park to Celebrate the 10th Circuit Court’s decision.

With yesterday’s 10th Circuit Court decision upholding Judge Robert Shelby’s December decision overturning Utah’s controversial Amendment 3, which blocked same-sex marriage, the executive branch has quickly reaffirmed its commitment to take Kitchen v. Herbert to the United States Supreme Court. Many have viewed this as an inevitable showdown since the initial Amendment 3 challenge came about.

Undaunted by the fact that the two-to-one decision went against the state, and estimates that a lawsuit is expected to cost the citizens of Utah $2 million, Governor Gary Herbert (Republican) remains unphased.

“I am disappointed with the decision from the Tenth Circuit Court of Appeals in regards to same-sex marriage. I believe states have the right to determine their laws regarding marriage,” Herbert said in a press release. “I am grateful the Court issued a stay to allow time to analyze the decision and our options. But as I have always said, all Utahns deserve clarity regarding same-sex marriage and that will only come from the Supreme Court.”

By granting a stay, the 10th Circuit realized the volatile nature of the situation and a recognition that the state would most likely move to appeal the decision. Indeed, the Attorney General’s office has already signaled that it plans to appeal the decision.

“The decision… in Kitchen v. Herbert is currently being reviewed by the Utah Attorney General’s Office,” Missy Larsen, Chief Communication Officer for the Attorney General’s Office announced. “Although the Court’s 2-1 split 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.”

Larsen noted in the same press release that the office plans to file what is known as a Petition for Writ of Certiorari, which formally requests that the Supreme Court review the 10th Circuit Court’s decision in Kitchen.

The AG’s office also signaled that it would consider an “en banc” review of the decision, wherein all 21 Judges sitting on the 10th Circuit could, in theory, listen to the Kitchen v. Herbert case and issue a decision. Though unlikely, en banc cases have been convened in the past for high profile court cases and would not be surprising for a high-profile case such as Kitchen.

Political Organizations Weigh In

Legal maneuvering aside, several organizations have been quick to praise or scorn the 10th Circuit’s decision.

“This is a proud day for everybody in the state of Utah, and everybody across the country, who supports marriage equality,” said John Mejia, legal director of the ACLU of Utah. “Though there is still much to do, the journey to ensuring the freedom to marry for all just got a huge boost with today’s decision.”

“This is a significant step in the astounding progress that has been made in just a few years toward achieving dignity for all families,” said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “Today’s decision will hopefully be the first of several around the country that will eventually lead to all loving couples being able to commit to each other and take care of each other with the protections that only come with marriage.”

The conservative think-tank, The Sutherland Institute, disagrees.

In a blog posted yesterday, William C. Duncan with the Institute wrote that “The crux of [the 10th Circuit Court’s] opinion is the novel claim that the Constitution has, since 1868, contained an unwritten “fundamental right” to same-sex marriage. They try to disguise the radicalness of that claim by saying that they are only applying the right to marry that has been previously recognized by the Supreme Court.” A general post from the Institute added that “it’s disappointing to have a few federal judges decide that they can unilaterally override the decision of Utah voters to preserve marriage as society’s way of preserving children’s opportunity to be reared by a mother and father.”

Citizens Gather To Celebrate

Wednesday evening also saw an impromptu celebration at City Creek Park in Downtown Salt Lake City to celebrate the Court’s decision.

At the celebration in city creek park, many speakers reaffirmed their commitment to love and equality. One former Navy SEAL noted that, after having served for 20 years and now identifying as a male to female transgender individual, she was proud that she fought for “Life, liberty and happiness” and that she was “proud of every second I served in the military. I am proud now to fight for human rights and civil rights. And I will continue to fight for freedom.”

The reverend of the First Baptist Church, Pastor Curtis Price, stated that “Soon, people in my church will have the religious freedom to solemnize their marriages before me. “ and that “So many religious people have gone to their knees and prayed, religious conviction compels so many towards God and God is love.”

Many of the speakers noted that while this was an important victory for gay, lesbian, and transgender rights, many other battles lay ahead. Battles for the freedom of discrimination against unfair hiring and firing practices, the battle for the right to adopt, and the continued battle to elect representatives who would stand with the crowd in its efforts for equal protection for all Americans.

Dave McGee contributed to this article.


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