(Diego M. Radzinschi/NLJ)
A divided federal appeals court on Wednesday declared Utah’s ban on same-sex marriage unconstitutional. In a 2-1 decision, a panel of the U.S. Court of Appeals for the Tenth Circuit affirmed the December ruling of a federal trial judge in Utah.
Multiple challenges to state same-sex marriage bans are pending in federal trial and appellate courts across the country. Thursday’s decision marked the first time a federal appeals court weighed in on the merits of a state ban on gay marriage.
“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,” Judge Carlos Lucero wrote for the majority. “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 court stayed its decision pending an appeal by Utah officials to the U.S. Supreme Court.
Lucero was joined by Judge Jerome Holmes. Judge Paul Kelly Jr. dissented, writing that the Fourteenth Amendment didn’t include a “fundamental right” requiring Utah to permit same-sex marriage and recognize same-sex couples legally married in other states.
Kelly urged deference to the choices that states made concerning marriage.
“If the states are the 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 national government on its head,” Kelly wrote.
Over the past year, a series of federal trial judges across the country have struck down state laws banning same-sex marriage or the recognition of legal out-of-state marriages.
A challenge to Oklahoma’s ban on same-sex marriage is pending before the Tenth Circuit—Wednesday’s opinion didn’t address that case—and the Fourth Circuit is also considering similar challenges to Virginia’s ban on same-sex marriage.
In a statement, the Utah attorney general’s office said it planned to seek review by the Supreme Court. However, officials hadn’t decided whether they would ask a full sitting of the Tenth Circuit to reconsider the panel’s ruling on Wednesday.
“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,” the attorney general’s office said.
Longtime appellate advocate Gene Schaerr argued for Utah. Schaerr left Winston & Strawn in January to take the case, serving as a special assistant attorney general for the state.
Peggy Tomsic of Magleby & Greenwood in Salt Lake City argued for the plaintiffs challenging the state’s ban on same-sex marriage. She could not immediately be reached for comment. She said in a statement that the Tenth Circuit’s ruling “affirms the fundamental principles of equality and fairness and the common humanity of gay and lesbian people.”
The National Center for Lesbian Rights also represented the challengers. Kate Kendall, the organization’s executive director, said in a statement that Wednesday’s decision “marks an indelible milestone in our nation’s journey to full inclusion—and one that will undoubtedly influence other courts in the months to come.”
U.S. Sen. Orrin Hatch, R-Utah, released a statement saying he disagreed with the opinion. He said he hoped that “the Supreme Court ultimately adheres to the original understanding of the Constitution and allows each state to define marriage for itself.”
Updated at 2:12 p.m.