UPDATE 3:14 p.m.   This post published earlier has been updated and expanded.

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One day before the first anniversary of the Supreme Court’s broad ruling protecting already-married same-sex couples, a federal appeals court on Wednesday took that precedent a major step further and struck down state laws forbidding gays and lesbians who newly seek to marry.  The U.S. Court of Appeals for the Tenth Circuit did so in a case involving a Utah ban.  The opinion, dividing that court two to one, is here.

In the wake of the Supreme Court’s decision last June in United States v. Windsor, striking down a key part of the federal Defense of Marriage Act, there has been a steady stream of rulings by federal trial judges nullifying state bans on such marriage — another such ruling came Wednesday in Indiana (see it here) — but the Tenth Circuit was the first to react to the Windsor decision at the appeals court level.

“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,” Circuit Judge Carlos F. Lucero wrote for the two-judge Tenth Circuit majority.  He was joined by Circuit Judge Jerome A. Holmes.  Circuit Judge Paul J. Kelly, Jr., dissented, arguing that the Supreme Court had settled the issue against same-sex marriage as long ago as 1972.

While the Supreme Court decision in the Windsor case involved an issue that “is not identical” to the question of state power to ban same-sex marriage, the Tenth Circuit majority said, that decision actually turned on the Supreme Court’s view of the “injury and indignity” that falls on same-sex couples when they are not treated equally.

The similarity of what was at issue in Windsor and the claims of the challengers to the Utah ban “cannot be ignored,” Judge Lucero wrote.

The opinion went on to recognize a right to marry as a fundamental right under the Fourteenth Amendment, and ruled that access to marriage cannot be denied to same-sex couples.   That right, the opinion said, focused on “the freedom to choose one’s spouse.”

Beyond an equal right to enter marriage, the ruling said, the Constitution provides the right to “remain married,” thus nullifying Utah’s refusal to recognize same-sex marriages that were performed outside the state for Utah couples.

The Tenth Circuit rejected the common argument made by supporters of bans on same-sex marriage — that is, that same-sex couples were seeking to establish a new right to same-sex marriage, as such.  What was at stake, it said, was equal access to marital rights for couples who otherwise satisfy the criteria for a marriage license.

Because it found that the equal right to marry was a “fundamental liberty,” the Tenth Circuit ruled that a ban on same-sex marriage can survive only if it withstands “strict scrutiny” — the most rigorous constitutional test there is.   It found that none of the state’s arguments could meet that test.

Noting that some observers have argued that it would be better to leave the marriage question to the democratic process and to the choice of state legislatures, the Tenth Circuit commented that “the judiciary is not empowered to pick and choose the timing of its decisions.”

The same-sex couples, it added, had persuaded the court that their fundamental right was violated by Utah’s ban, and “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.”

The Tenth Circuit noted that, after a federal trial judge had struck down the Utah ban, the Supreme Court had put that ruling on hold.  So, the Tenth Circuit said, it was postponing the effective date of its ruling until after the Supreme Court has a chance to consider any appeal by state officials.   If such an appeal is not filed, or if it is filed and rejected, its ruling would then go into effect, it said.  If the Supreme Court agreed to take on the case, the stay would remain in effect until a decision emerged.

In the Indiana case, in which that state’s same-sex marriage ban was struck down, the Indianapolis judge who issued the ruling ordered his decision into effect immediately.  That would put it up to state officials to decide whether to seek a stay from the U.S. Court of Appeals for the Seventh Circuit.

 

Posted in Herbert v. Kitchen, Featured, Same-Sex Marriage Post-Windsor

Recommended Citation: Lyle Denniston, Utah ban on same-sex marriage nullified (UPDATED), SCOTUSblog (Jun. 25, 2014, 12:15 PM), http://www.scotusblog.com/2014/06/utah-ban-on-same-sex-marriage-nullified/