- The Washington Times - Wednesday, June 25, 2014

Two federal courts struck down state marriage laws in Utah and Indiana against same-sex unions Wednesday, continuing a sweep of rulings that all find that people have a constitutional right to marry someone of the same sex.

In a 2-1 ruling from the 10th U.S. Circuit Court of Appeals, judges agreed with a lower-court ruling that Utah’s voter-approved constitutional amendment defining marriage as the union of a man and a woman violated equal protection guarantees in the U.S. Constitution.

“We hold that the 14th Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws,” wrote Judges Carlos F. Lucero and Jerome A. Holmes. “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 two judges stayed their decision, pending appeal, in the case filed by Derek Kitchen and Moudi Sbeity and other gay couples against Utah Gov. Gary R. Herbert and other state officials.

Dissenting 10th Circuit Judge Paul J. Kelly Jr., said the 14th Amendment does not require Utah to extend marriage licenses to same-sex couples or recognize such unions from other states.

“If the states are the laboratories of democracy,” he said, “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.”

The 10th Circuit ruling was the first gay marriage decision at the appellate level since the Supreme Court issued its rulings in two gay marriage cases a year ago. The initial ruling in Kitchen v. Herbert, by U.S. District Judge Robert J. Shelby in December, was the first of some 20 rulings overturning marriage laws in favor of gay plaintiffs.

Mr. Herbert, a Republican, said he was “disappointed” with the appellate decision, but grateful that it included a stay. 

He noted that at least one judge agreed with the state’s position — that states have the right, through the democratic process, to define marriage — and rejected calls to give up, as other states’ officials have done.

Not appealing would be “like stopping a game in the middle of the contest,” and leaving things in “a state of chaos,” Mr. Herbert told a press conference.

The office of Utah’s Republican Attorney General Sean Reyes immediately announced plans to file an appeal to the Supreme Court to overturn the Denver court’s ruling. He also left open the possibility of asking for an en banc review of the case at the 10th Circuit.

Peggy Tomsic, attorney for the gay plaintiffs, said Wednesday’s decision “is a victory not only for the courageous couples who brought this case, but for our entire state and every state within the Tenth Circuit.”

Sen. Orrin Hatch, Utah Republican, said that he was not surprised by the decision. However, he said, “I disagree with the court’s reasoning and hope the Supreme Court ultimately adheres to the original understanding of the Constitution and allows each State to define marriage for itself.”

Separately, U.S. District Judge Richard L. Young struck down Indiana’s definition of marriage as a male-female union and permanently enjoined the state from enforcing it, setting the stage for gay marriages to take place in the state immediately, assuming a higher court doesn’t stay or reverse him.

“Today’s decision joins the unbroken string of court rulings around the country to come down in favor of marriage equality,” said Kevin Cathcart, executive director of Lambda Legal, which represented the five couples who sued to overturn Indiana’s marriage laws.

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