I think there were a number of judges around the country who didn't want to ask the hard questions that Judge Shelby was forced to ask and it made it really easy for them. – Utah Federal Solicitor Parker Douglas

SALT LAKE CITY — No one expected a judge in the reddest of red states to lead out on legalizing same-sex marriage.

But a year ago today, U.S. District Judge Robert J. Shelby in Utah was the first to rule on a state's gay marriage ban after the U.S. Supreme Court overturned part of the federal Defense of Marriage Act in U.S. v. Windsor in June 2013.

Shelby found the state’s voter-approved 2004 law defining marriage as between a man and a woman unconstitutional, ruling it violated the 14th Amendment guarantees of equal protection and due process.

"I think it kind of shocked the nation," said Peggy Tomsic, the lawyer for three same-sex couples who challenged the state's Amendment 3.

The Friday afternoon decision touched off a frenzy at the Salt Lake County government office where dozens of gay and lesbian couples rushed to get marriage licenses and make vows on the spot.

As the first ruling to apply the high court opinion in the Windsor case, it was cited in courts across the country, almost all of which agreed not only with the result but often Shelby's reasoning.

Shelby found in Kitchen v. Herbert that state law denied gays and lesbians the fundamental right to marry and demeaned the dignity of same-sex couples for no rational reason.

That Utah would be among the nation's earliest states to have same-sex marriage would be "unthinkable" five years ago when a string of states started adopting it by legislation, said Bill Duncan, executive director of the Provo-based Marriage Law Foundation.

"In that sense, Judge Shelby made the unthinkable thinkable," he said.

Duncan, who disagreed with the ruling, said the interesting question now is does a state not adopting same-sex marriage become unthinkable.

Seventeen states allowed gay and lesbian couples to marry before the Shelby ruling. Now, there are 35, according to the advocacy group Freedom to Marry. Challenges to state laws are pending in the other states, and one in which a federal appeals court upheld gay marriage bans could be heard in the U.S. Supreme Court during its current term.

Utah Federal Solicitor Parker Douglas, who defended the state's Amendment 3, said Shelby's opinion was influential not necessarily because of the reasoning but because it created a precedent.

"I think there were a number of judges around the country who didn't want to ask the hard questions that Judge Shelby was forced to ask and it made it really easy for them," he said.

Tomsic said Shelby's decision was a "big deal" in that it laid the groundwork and provided support for judges' positions in other courts.

"Because people outside of Utah tend to have a skewed vision of what this state is like, people perceived a decision coming out of Utah as holding a lot more weight than a decision coming out of California or Massachusetts," she said.

Activist judge?

While the LGBT community hailed Shelby's ruling, traditional marriage proponents, including Gov. Gary Herbert, called him an activist judge. That sentiment heightened as he declined to stay his decision, which allowed couples to immediately get married.

The ruling came as Utah lawmakers looked to draft religious freedom bills, stemming largely from the Windsor decision. One legislator proposed a law and a resolution for a constitutional amendment that would exempt clergy, state and local government officials and judges from having to solemnize marriages that go against their religious beliefs.

Jonathan Johnson, chairman of Overstock.com and head of the Promote Liberty PAC, said that Supreme Court decision got the religious freedom discussion going, "then the Shelby case came out. That put the brakes on everything."

Leaders in the Republican-controlled Legislature shelved all legislation related to marriage and nondiscrimination, saying they didn't want political rhetoric to hurt Utah's appeal in the same-sex marriage case. Those types of bills will be back when lawmakers meet in general session next month.

The Kitchen case moved rapidly through the courts, taking about 18 months to reach its conclusion.

Same-sex couples Derek Kitchen and Moudi Sbeity and Laurie Wood and Kody Partridge filed the lawsuit in March 2013 after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah did not recognize their marriage as valid.

Shelby's ruling came just nine months later.

Wood and Partridge wed on the day of Shelby's ruling. Kitchen and Sbeity plan to get married next May.

Utah asked the 10th Circuit Court of Appeals in Denver to put the lower court decision on hold, but, like Shelby, it refused. Same-sex weddings continued until Jan. 6 of this year, when the U.S. Supreme Court intervened at the state's behest.

The high court's stay remained in place while Utah appealed Shelby's ruling to the 10th Circuit. A three-judge panel in a 2-1 decision sided with Shelby, and the state again turned to the Supreme Court.

In October, the justices declined to hear Utah's case, letting stand the 10th Circuit Court's opinion that upheld the district judge's ruling that legalized same-sex marriage.

On the same day, the high court denied petitions in six other cases from four states.

Moving forward

"Looking back on it, a year since the Shelby decision, we can say as a state we're settled because the 10th Circuit has ruled and the time for us to take it to the Supreme Court has passed," Douglas said. "But as a nation, it's wide open."

Last month, the 6th Circuit Court of Appeals in Cincinnati became the first federal appeals court to uphold state bans on gay marriage since the Windsor decision. The ruling conflicts with federal appellate court opinions in Denver, Chicago, San Francisco and Richmond, Virginia.

The split makes Supreme Court intervention more likely.

While the majority of federal judges have agreed with Shelby, University of Utah law professor Cliff Rosky said most important is what the Supreme Court justices think but haven't explicitly expressed.

"But it's hard to imagine a stronger signal than the one that they gave in October and on various occasions since," he said. "When they denied seven appeals in a day, they knew, as the rest of the country knew, they were giving a green light to tens of thousands of marriages for same-sex couples."

Are the justices likely to undo what lower courts have done in allowing thousands of couples to marry? Rosky said he can't see the court "creating that kind of mess for itself."

"As a practitioner in this state, what scares the heck out of me is we didn't get our case in front of the Supreme Court. What happens if lightning strikes and it goes the other way. That's Sally bar the door," Douglas said.

Douglas said regardless of the court rulings, Amendment 3 remains in the Utah Constitution. If the high court were to side with state bans on same-sex marriage, he said, he could see people on the left starting a referendum to get the amendment off the books, while those on right would demand a declaration from a federal court that it's constitutional.

Tomsic said she never expected to see legal same-sex marriage in her lifetime, and doing away with it now would be going back to the "dark ages." She said it has empowered a group of people in Utah who she said were not treated with respect and didn't have equal rights.

"I think what it's done is give people a little straighter stand and walk and more courage to speak out for who they are and not put with people treating them badly," she said.

Equality Utah, the Utah Pride Center and the ACLU of Utah plan to commemorate Shelby's ruling today in Trolley Square starting at 3 p.m. with a celebration featuring a wedding cake, a short program, and a champagne toast by the Rev. Patty Willis of South Valley Unitarian. The plaintiffs in the case along with other couples who married afer the Shelby ruling are expected to attend.

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