[dropcap]I[/dropcap]SSUING the first decision in the growing line of federal district court cases on gay marriage stacking up around the country, a three-judge panel of the Tenth Circuit Court of Appeals in Denver Wednesday morning ruled in favor of same-sex marriage couples, agreeing with Utah District Judge Robert Shelby’s landmark December ruling that the state’s gay marriage ban violates fundamental constitutionally guaranteed rights.
The judges — Paul Kelly and Jerome Holmes, appointed by Republican presidents, and Carlos Lucero, by a Democrat —- stayed the ruling for now pending appeal to a higher court.
A main question left by the Supreme Court ruling last year striking down the federal Defense of Marriage Act, wrote the judges, was whether a state may “constitutionally deny a citizen the benefit or protection of the laws of the state based solely upon the sex of the person that citizen chooses to marry?”
“Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so,” they wrote. “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.”
Court watchers have been keen to see whether the Tenth Circuit judges would support Shelby’s very strong ruling in favor of same-sex marriage as a “fundamental right.” The Tenth Circuit did so.
“In summary, we hold that, 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,” reads the ruling.
Although Judge Kelly disagreed on that score, writing in his dissent:
“I disagree with this court’s conclusions that… the liberty guaranteed by the Fourteenth Amendment includes a fundamental right which requires Utah to extend marriage to same-gender couples and recognize same-gender marriages from other states.”
“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… Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable… And given the recent advent of same-gender marriage, it is hardly remarkable that a state might codify what was once implicit.”
A judge in Oklahoma weighing a similar case also struck down that state’s marriage ban but on more narrow equal protection grounds. The Tenth Circuit is weighing an appeal in that case and is likely to issue a ruling in the coming days.
Supreme Court bait
The strong ruling in this first federal appeals case considering state gay-marriage bans makes it more likely that the U.S. Supreme Court might take up an appeal of the decision. The ruling may be interpreted as a “first impression” case, one where there is no direct legal precedent to help decide the question before the court. The high court justices, depending on how other district appeals courts rule in the coming months, might see the case as an important one to stamp with their opinions.
The parties to the Tenth Circuit Utah case, Kitchen v. Herbert, have 14 days to file appeals. They can appeal to the U.S. Supreme Court or ask for an “en banc” review, where all of the active judges on the Tenth Circuit court rehear the case. It is up to the court to grant such a request. An en banc review would likely add a year’s time to any decision.
According to Kyle Velte, a lecturer in gender, social policy and the law at the University of Denver law school, judges on the Tenth who agree with Kelly’s dissent could vote to accept the opportunity provided by an en banc hearing, with the hope that enough like-minded judges on the Tenth Circuit would overrule today’s decision and thus “give Kelly’s interpretation legs,” as Velte put it.
“It’s a different interpretation of the law than the majority, but one that has doctrinal support in Supreme Court precedent. Kelly just wasn’t in the majority.”
There are twelve active seats on the Tenth Circuit Court of Appeals. Eleven of those seats are filled — six by judges appointed by Democratic Presidents Clinton and Obama and five appointed by Republican Presidents George H.W. Bush and George W. Bush. There are three judges from Colorado, one from Kansas, two from New Mexico, two from Oklahoma, two from Utah and one from Wyoming.
Velte cautions, however, that all the parties to the lawsuit are well aware that the Tenth Circuit is “not the last stop for this case.”
“My guess is they will want to go straight to the Supreme Court and seek to have it settled.”
She says the Kitchen case has all the ingredients that might make it attractive to the high court justices.
“They’ll have to take one of these appellate rulings percolating around the country… If they agree with the merits of the reasoning of the Tenth Circuit, then full stop, we’re done with this question, coast to coast.”
The ruling comes just a little more than a week after Adams County District Court Judge Scott Crabtree heard arguments in cases aimed at lifting Colorado’s 2006 constitutional gay marriage ban. The arguments mirror the arguments made in the Kitchen case and the rough dozen similar cases presented in courts in other states.
The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Only a U.S. Supreme Court ruling could override Colorado’s ban. But today’s decision at the Tenth will certainly influence Crabtree’s decision.
“Both of those Colorado cases cases are based on federal claims,” said Velte. “They argue that the Colorado law violates U.S. constitutional rights. So I have no doubt Judge Crabtree is in chambers right now reading this decision and that it will be extremely persuasive. He is probably thanking his stars that this decision has been handed down in his own circuit and that he can lean on it to bolster his ruling.”
Evan Wolfson, president of gay-rights group Freedom to Marry, underlined the significance of the ruling.
“Today, from the heart of the Mountain West, in a case arising out of Utah, the 10th Circuit Court of Appeals has brought us one giant step closer to the day when all Americans will have the freedom to marry. This first federal appellate ruling affirms what more than 20 other courts all across the country have found: There is no good reason to perpetuate unfair marriage discrimination any longer. America is ready for the freedom to marry, and it is time for the Supreme Court to bring our country to national resolution and it should do so now.”
The Colorado Independent ran an in-depth profile of Derek Kitchen and Moudi Sbeity, the Utah couple at the heart of the pathbreaking case.
This story is developing and will be updated.