Judges uphold lower court ruling that struck down the ban, saying 'plaintiffs have a fundamental right to marry'

This article is more than 6 years old

This article is more than 6 years old

A federal appeals court issued a historic ruling on Wednesday, finding for the first time that same-sex marriage is constitutionally protected in a decision that is expected to bring the issue closer to the US supreme court.



The 2-1 ruling, by the 10th circuit court of appeals, upheld a lower court ruling that struck down Utah's gay marriage ban and gives a boost to a growing momentum of legal victories by advocates for same-sex marriage.



The Utah attorney general’s office said it will appeal the decision to the US supreme court.

Some 16 federal judges have issued rulings in favour of gay marriage. But Wednesday's ruling represents the first time a federal appeal court has ruled on the issue since last summer's landmark ruling against the Defense of Marriage Act (Doma) and California's same-sex marriage ban.

The legal precedent the appeal court set will apply to same sex marriage in all six states in the 10th circuit, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma as well as Utah, but the judge issued a stay, blocking it from taking effect, pending appeal.

It was immediately hailed as an “extremely exciting” victory by campaigners for same-sex marriage, who said that the Utah case could now potentially reach the supreme court.

"Courts do not sit in judgment of the hearts and minds of citizens," said the 10th US circuit court of appeals majority after ruling that "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 appeal court's ruling upheld a federal judge's decision in December 2013 that a 2004 voter-approved ban on same-sex marriage is unconstitutional.

The ruling came moments after another federal judge in a lower court struck down Indiana's ban on gay marriage.

Shannon Minter, the legal director of the National Center for Lesbian Rights, and counsel in the case, said the ruling “changes the legal landscape enormously”.

“This is the first time that a federal court of appeal has ruled that same sex couples have a right to marriage … it is one step away from the supreme court,” he said.

The supreme court is under no obligation as to which cases – or indeed any cases – it chooses to hear.

In order for same-sex marriage bans in the 10th circuit states to be overturned, a state or federal court would have to rule. They are not bound by the 10th circuit's decision, Minter said, but the court is “extremely influential”.

New Mexico already has gay marriage, and there are three cases challenging same-sex marriage bans, one in Wyoming and two in Colorado, he said.

A state challenge to a lower court ruling striking down a gay marriage ban in Oklahoma will also be decided by the 10th circuit, in a ruling expected soon.

The state now has the option to request an en banc appeal before the full bench of the 10th circuit. The 10th circuit decides whether or not to grant that request. If it is denied, the defendants can also appeal today’s ruling to the US supreme court.

They may also bypass an en banc session and appeal directly to the supreme court.

Sarah Warbelow, legal director of the Human Rights Campaign, described the decision on Wednesday as “hugely momentous” .

“The 10th circuit is not known as a particularly liberal court, more a middle of the road court,“ she said, noting that judges appointed by both Democrats and Republicans are ruling in favour of gay marriage rights.

For a brief period, Utah became the 18th state where marriage rights were extended to same-sex couples after Judge Robert Shelby's ruling in December. Some 1,300 same-sex couples were married in Utah before a judge granted the state an emergency stay in January. In Oklahoma, a judge set aside his order before any marriages took place.

Utah argued that voters and politicians have the right to define marriage, not the judiciary. It said that that redefining marriage in genderless terms could affect religious freedom, provoke civil strife, result in a declining birth rate, and suggested that children do better in partnerships with a father and a mother than they do with same-sex couples.

In his ruling, 10th circuit judge Carlos Lucero said that the state had argued that permitting same marriage would have “far reaching and drastic consequences” for Utah's opposite-sex couples. But he concluded: “We emphatically agree with the numerous cases decided since Windsor that it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.”

He dismissed the state's argument that children do better in opposite marriages as “tepid”.

“On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day,” he said.

Citing the Windsor majority, which stressed the detrimental effect of Doma on the children of same-sex parents, by communicating that same-sex parents are less deserving of family recognition than other parents, Lucero said that the Utah amendment conveyed a similarly “harmful message”.

Lucero, who was named to the court by Bill Clinton, with Judge Jerome Holmes, a George W Bush nominee, agreeing.

In his dissent Wednesday, 10th circuit justice Paul J Kelly Jr said the court was overstepping its authority and that states should be able to decide who can marry.

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

There are over 70 court cases challenging marriage bans, across 30 states and Puerto Rico, according to the Human Rights Campaign.

Same-sex couples can legally marry in 19 states and the District of Columbia, while 31 have a law or constitutional amendment restricting marriage to the union of one man and one woman.