First ruling by federal appeals court on same-sex marriage favor UT gay couples

Windsor Genova – Fourth Estate Cooperative Contributor

Washington, DC, United States (4E) – The 10th Circuit Court of Appeals in Denver became the first appeals court in the U.S. to rule that states outlawing same-sex marriage violated the Constitution.

Majority of the said court’s three judges issued the ruling with a stay on Wednesday for the Kitchen v. Herbert lawsuit, where three pairs of lesbian and gay couples asked it to uphold the December ruling of U.S. District Judge Robert Shelby.

Shelby struck down Utah’s ban on same-sex marriage and the ruling prompted more than a 1,000 same-sex couples in the state to marry before the U.S. Supreme Court issued a stay, halting all such weddings.

“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,” Circuit Judge Carlos F. Lucero wrote in the majority opinion, according to Salt Lake Tribune (SLT). “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 judges rejected the state’s argument linking marriage with procreation on grounds that opposite-sex couples who do not or cannot procreate by reason of age or sterility are still allowed to marry. The judges also emphasized that religious leaders are not required to allow same-sex marriage in their churches.

“The right of an officiant to perform or decline to perform a religious ceremony in unaffected by today’s ruling,” SLT quoted the judges as saying in the ruling.

Circuit Judge Jerome A. Holmes joined Lucero in the decision while Circuit Judge Paul J. Kelly Jr. dissented. Their ruling affects all states under their jurisdiction namely Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The judges stayed the implementation of their decision as Utah’s attorney general said Wednesday it will appeal the ruling before the U.S. Supreme Court.

If the state chooses not to petition the high court, counties would be free to start issuing marriage licenses to same-sex couples, according to Salt Lake County District Attorney Sim Gill.

The AG’s office was one with Gov. Gary Herbert in welcoming the decision saying it will give them the opportunity to reach certainty and finality for all Utahns on the issue of same-sex marriage.

“The Tenth Circuit Court’s issuance of a stay will avoid further uncertainty until the case is finally resolved,” it said, according to SLT.

Sen. Orrin Hatch (R-Utah), who expects gay marriage to become legal, was disappointed with the ruling. He hopes “the Supreme Court ultimately adheres to the original understanding of the Constitution and allow each state to define marriage for itself.”

“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,” Sutherland Institute, a conservative think tank, said in a statement according to SLT.

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