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10th Circuit Court: Utah’s same-sex marriage ban is unconstitutional

In landmark decision, 10th Circuit Court upholds federal judge’s ruling declaring Utah’s ban on gay marriage unconstitutional.

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"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," the appellate court said.

The decision concludes: "Courts do not sit in judgment of the hearts and minds of citizens."

At a glance

Same-sex marriage in Utah

Nov. 2, 2004 » Utah passes Amendment 3, which states that “marriage consists only of the legal union between a man and a woman.”

March 25, 2013 » Three couples file a lawsuit alleging Utah’s Amendment 3 violates the 14th Amendment to the U.S. Constitution.

June 26, 2013 » The U.S. Supreme Court strikes down the Defense of Marriage Act, which barred gay marriage, and declines to rule on California’s Proposition 8, clearing the way for same-sex marriage in the Golden State.

Dec. 20, 2013 » U.S. District Judge Robert Shelby strikes down Utah’s Amendment 3 as unconstitutional, opening the door to same-sex marriage in the state. More than 1,000 same-sex couples obtain marriage licenses in the next 17 days.

Jan. 6, 2014 » The U.S. Supreme Court grants the Utah Attorney General’s Office’s request for a stay, ending same-sex marriage in Utah pending the 10th Circuit Court outcome of the state’s appeal of Shelby’s ruling.

March 12, 2014 » Utah decides to place same-sex marriages performed before the stay “on hold” rather than fully recognizing them or refusing to recognize them.

May 19, 2014 » U.S. District Judge Dale A. Kimball orders Utah to honor and recognize all same-sex marriages performed while Shelby’s ruling was in effect.

June 6, 2014 » The 10th Circuit Court of Appeals temporarily stays Kimball’s ruling, halting any movement toward marriage recognition. The case remains on hold.

June 25, 2014 » The 10th Circuit rules that states outlawing same-sex marriage are in violation of the U.S. Constitution but issues an immediate stay to its own ruling, anticipating an appeal by Utah to the U.S. Supreme Court.

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The judges emphasized that religious leaders are still free to practice their sacraments and traditions as they see fit, and are not required to allow same-sex marriage in their churches.

"We continue to recognize the right of the various religions to define marriage according to their moral, historical and ethical precepts," the opinion reads. "Our opinion does not intrude into that domain or the exercise of religious principles in this arena. The right of an officiant to perform or decline to perform a religious ceremony in unaffected by today’s ruling."

The ruling split along the same lines formed during oral arguments in April, when the three judges — Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes — asked pointed questions about marriage studies, jurisdiction and standard of scrutiny.

At that time, Kelly — who was the dissenting judge in Wednesday’s opinion — had asked the plaintiffs’ attorney hard questions about state authority.

Kelly on Wednesday disagreed that the 14th Amendment requires Utah to extend marriage to same-sex couples or recognize such marriages from other states.

He noted that the U.S. Supreme Court has recognized a fundamental right to marriage but said every decision vindicating that right has involved two opposite-gender people.

"Indeed, the Court has been less than solicitous of plural marriages or polygamy," Kelly wrote. "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 — [it] turns the notion of a limited national government on its head."

Marriage does not exist in a vacuum and states have the right to regulate it, the judge added. He said Utah should prevail because the state has shown a rational basis for its decision to ban same-sex marriage — responsible procreation, effective parenting and the desire to proceed cautiously with a new social phenomenon.

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"Utah’s justifications for not extending marriage to include same-gender couples are not irrefutable. But they don’t need to be; they need only be based upon ‘any reasonably conceivable state of facts,’ " Kelly wrote.

He also wrote, "We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment."

During the April arguments in Denver, Tomsic had asked the judges to ensure marriage equality for all, while the state’s lead attorney, Gene C. Schaerr, asked them to preserve marriage rights only for opposite-sex couples.

The state argued at that hearing that children benefit from being parented by a mother and a father, not two mothers or two fathers.

But Tomsic also argued that the case is about family. She said couples want to provide for and protect each other legally, and children are demeaned and humiliated when their parents are unable to marry and provide them with the benefits and protections associated with the civil institution.

The American Civil Liberties Union had submitted a "friend of the court" brief in support of the plaintiffs in the Kitchen v. Herbert lawsuit.

The ACLU also has filed a lawsuit in Utah’s federal court seeking recognition of the marriages of same-sex couples who were wed during the 17-day period when such marriages were legal.

Though U.S. District Judge Dale A. Kimball ordered Utah in May to honor and recognize all same-sex marriages performed during the 17-day period, the 10th Circuit halted any movement toward marriage recognition by issuing a stay after the state filed notice that it would appeal Kimball’s order.

Reporters Marissa Lang, Pamela Manson and Kirsten Stewart contributed to this story.

jmiller@sltrib.com Twitter: @jm_miller

Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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