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FILE - Plaintiffs challenging Utah's gay marriage ban Derek Kitchen, right, and his partner Moudi Sbeity hug after leaving court following a hearing at the U.S. Circuit Court of Appeals in Denver, Thursday, April 10, 2014. The court is to decide if it agrees with a federal judge in Utah who in mid-December overturned a 2004 voter-passed gay marriage ban, saying it violates gay and lesbian couples' rights to due process and equal protection under the 14th Amendment. (AP Photo/Brennan Linsley)
As Utah waits for same-sex ruling, marriage battle spreads
Courts » Support appears to be growing for same-sex marriage.
First Published May 11 2014 01:01 am • Last Updated May 12 2014 02:01 pm

Utah’s bid last month to overturn a federal judge’s historic same-sex marriage ruling came on like a storm.

There were weeks of buildup and countless hours of preparation. When it finally hit — in a Denver courtroom at the 10th Circuit Court of Appeals — it was quick but impactful, with both sides given half an hour to make their case. In its wake, days of rabid speculation took hold.

At a glance

Where is same-sex marriage legal?











New Hampshire

New Jersey

New Mexico

New York

Rhode Island



Washington, D.C.

States with cases pending in U.S. appeals courts

4th Circuit » Virginia

5th Circuit » Texas

6th Circuit » Kentucky, Michigan, Ohio, Tennessee

9th Circuit » Nevada

10th Circuit » Oklahoma, Utah

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Then silence.

But there is little calm in this quiet as both sides of Utah’s same-sex marriage debate eagerly await a ruling that could come any day now.

Meanwhile, challenges to gay-marriage bans across the nation continue to be filed, fought and won.

On Friday, a state judge in Arkansas ruled that the state’s voter-approved ban on same-sex marriage violated the federal Constitution’s promise of equal protection. It became the latest in a battery of state and federal cases that have declared such laws unconstitutional.

Although it’s unclear how these rulings may affect the decision of appellate judges — or, eventually, the U.S. Supreme Court — it’s a trend experts say shouldn’t be ignored.

"It’s hard to imagine that all those judges are wrong, but we’ll see," said Carl Tobias, a professor at the University of Richmond School of Law. "At some point if you have so many rulings pointing one direction, it becomes that much more difficult to rule the other way. It’s almost like a tidal wave of support for the plaintiffs in these cases."

State by state » As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage.

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Gay and lesbian marriages are legal and recognized in 17 states.

Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.

But the landscape is constantly changing.

Marc Solomon, the national campaign director of gay-rights organization Freedom To Marry, said it’s an exciting, albeit hectic, time to be on the forefront of the same-sex marriage fight.

"The public support continues to grow and expand in our direction. Every day there are more cases being filed and decided, and since last year’s ruling on [the Defense of Marriage Act], we’re 11 for 11 in federal court," Solomon said. "All that together makes me quite confident that marriage equality will ultimately prevail."

Most challenges to local same-sex marriage laws point to the U.S. Supreme Court’s ruling last year that struck down the crux of the Defense of Marriage Act and declared that the federal government could not define marriage as a strictly heterosexual union.

Many also cite Robert J. Shelby, the federal judge who toppled Utah’s ban on gay marriages.

Shelby — who was nominated to the federal bench by President Barack Obama and publicly endorsed by Utah’s Republican senators, Mike Lee and Orrin Hatch, — became the first federal judge to rule on such a case in the aftermath of the DOMA decision. In his ruling, he declared that marriage is a "fundamental right" and cannot be denied to U.S. citizens regardless of their sexual orientation or the gender of their would-be spouses.

"The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason," he ruled.

In the last two months alone, the United States has seen five new challenges to local same-sex marriage bans, with lawsuits in Arizona, Georgia, Florida, Puerto Rico and Wyoming.

Wyoming became the last of the 10th Circuit states to challenge a state ban on same-sex unions. The case, Courage v. Wyoming, was filed in state court on March 5 by the National Center for Lesbian Rights on behalf of four plaintiff couples in the state.

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