Fed appeals court moves same-sex marriage ahead another step

DENVER — The Byron White Courthouse sits above Stout Street, a white marble, neoclassical altar to the U.S. Constitution.

Gaggles of lawyers scurry in with their dark suits and briefcases, talking in the hallways. They’re allowed 15 minutes to make narrowly tailored arguments in federal cases that have wended through lower courts and shaped people’s lives. Then the lawyers scurry out, knowing it could take a year or even longer for the judges of the 10th Circuit Court of Appeals to hand down a ruling.

Wednesday morning seemed like any other at the courthouse. The place was silent, its hallways empty and immaculately polished, as always.

If history was being made there, it wasn’t apparent.

But at 9:53 a.m., a clerk somewhere behind the grand corridor pushed “send” on Opinion 13-4178, a ruling in a Utah same-sex marriage case that was “fast-tracked” in January and argued before a three-judge panel in April.

Within minutes, the opinion in Kitchen v. Herbert was being forwarded and forwarded again in emails marked “urgent” in red. Lawyers, activists and journalists skimmed the 65-page opinion for the two words that were all they needed to know: “We affirm.”

Wednesday’s ruling, which included a dissent by Judge Paul Kelly, is the first federal appellate court decision to find a state same-sex marriage ban unconstitutional. The ruling upheld a decision by a federal judge in Utah striking down Utah’s 2004 law banning men from marrying men and women from marrying women in that state. The court dismissed as “wholly illogical” the notion that allowing same-sex couples to wed could somehow undermine traditional marriage. Gay men and lesbians, it asserted, should have equal protection as opposite-sex couples.

“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,” it read. “For the reasons stated in this opinion, we affirm.”

That paragraph was the “money quote” — cut, pasted and emailed to organizers, clergy members, politicians, scholars, news junkies, gays, lesbians, bisexuals, transgender people, queers and their families and friends and throughout the country.

Utah Attorney General Sean Reyes is asking the U.S. Supreme Court to review the Kitchen case. Parties to the suit have two weeks to submit paperwork and placed a stay on the ruling pending appeal, so technically, the ruling hasn’t changed any laws. That hasn’t stopped people in the Tenth Circuit — it covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — from reading the writing on the wall.  In Colorado, Boulder County Clerk Hillary Hall began issuing marriage licenses to same-sex couples Wednesday. Clerks in nearby Lafayette and Longmont will follow suit Friday. State Attorney General John Suthers’ office says the licenses are not valid.

“Today’s decision by the 10th Circuit Court of Appeals was stayed by the court and has not gone into effect even in Utah, let alone in Colorado,” read a statement by Suthers. “Any marriage licenses issued to same-sex couples in Colorado before a final court resolution of the issue are invalid.”

But the ruling is another large step forward at what seems like the last stretch on the road to national gay marriage.

“A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society,” the ruling reads. “As the district court eloquently explained, ‘it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.’”

The opinion detailed the relationship between Derek Kitchen and his partner, Moudi Sbeity, the Utah couple at the heart of the case (about whom The Colorado Independent ran an in-depth profile in April).  “They desire not to redefine the institution but to participate in it,” it read.

As eager as some county clerks are to start licensing same-sex marriages, folks who’ve waited decades for the right to legally wed said they’ll keep waiting until the case law is settled. Many see civil unions, which were legalized in Colorado last year, as a half-step in a civil rights movement that’s just now reaching full stride.

“Civil unions is offering crumbs. Same-sex marriage is a place at the table,” said Steve Smith, a 51-year-old therapist  from Denver. “For those of us who’ve been offered crumbs most of our lives, this is a chance for full equality.”

Shawn Sherwood, owner of Salon Sherwood in Denver, says people too often conflate the urgency of potentially wedding his partner, Joel Benson, with the urgency of full equality for all.

“I’m always hearing ‘You and Joel love each other, so you need get get married.’ My reply is ‘I don’t know if we need to, but we need to have the right.'”