10th Circuit Court Says States Can’t Ban Gay Marriage

In a ruling that strikes down gay marriage ban in Oklahoma, the 10th U.S. Circuit Court of Appeals said today that the 14th Amendment protects same-sex couples’ right to marry.

The decision is in the Utah case, which  was considered on a fast track with the Oklahoma case. In both cases, federal judges struck down state bans.

The Oklahoma case is still pending. However, the principle involved in the Utah case applies to Oklahoma and the other states in the circuit: Colorado, Wyoming, Kansas and New Mexico.

Here is a key passage:

“May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of th e State based solely upon the sex of the person that citizen chooses to marry?
“Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so.
“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. For the reasons stated in this opinion, we affirm.”
 In the 2-1 decision, the court dismissed arguments from the state of Utah that allowing same-sex marriages would have a destabilizing effect on opposite-sex marriages.
“We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child,” the court ruled.

The opinion can be found here.

Source: NewsOK, “10th Circuit Court Says States Can’t Ban Gay Marriage,” by Chris Casteel Modified: June 25, 2014 at 12:05 pm •  Published: June 25, 2014

LANDMARK VICTORY: 10th Circuit Appeals Court rules in favor of the freedom to marry

** BREAKING: The 10th Circuit has upheld a lower court ruling finding that denying same-sex couples the freedom to marry in Utah is unconstitutional! This is the first federal appellate court ruling since ‘Windsor.

 

Today the 10th Circuit Court of Appeals in Denver ruled in favor of same-sex couples’ freedom to marry, upholding a marriage ruling out of Utah in December. It is the first ruling by a federal appellate court since last year’s victory in the Supreme Court and, unless reversed, will pave the way for the freedom to marry throughout the 10th Circuit, including in Colorado, Oklahoma, Wyoming, and Kansas.

The ruling is stayed pending further action, which could include an appeal to the United States Supreme Court.

The ruling, written by Judge Lucero, reads:

Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not [deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry]. 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.

Read the full ruling HERE. 

Evan Wolfson, president of Freedom to Marry, released the following statement:

Today, from the heart of the Mountain West, in a case arising out of Utah, the 10th Circuit Court of Appeals has brought us one giant step closer to the day when all Americans will have the freedom to marry. This first federal appellate ruling affirms what more than 20 other courts all across the country have found: There is no good reason to perpetuate unfair marriage discrimination any longer. America is ready for the freedom to marry, and it is time for the Supreme Court to bring our country to national resolution and it should do so now.

The decision is in Kitchen v. Herbert, brought by the National Center for Lesbian Rights and private counsel, on behalf of same-sex couples. Meet two of the plaintiffs, Derek Kitchen & Moudi Sbeity, and Laurie Wood & Kody Partridge, HERE.

Currently, 44% of Americans live in states where gay couples share in the freedom to marry: 19 states and the District of Columbia. Recent polling by the Washington Post/ABC News shows 59% of Americans support marriage, including a majority of young evangelicals and Republicans under 45 in other polls.

Oregon and Pennsylvania became the most recent states to begin issuing marriage licenses to same-sex couples after courts found the ban on the freedom to marry unconstitutional. In total, 22 rulings in recent months have found that state bans on marriage for same-sex couples are unconstitutional.

Learn all about pending marriage litigation – the 70+ cases in every single state in the country – HERE.

10th Circuit arguments on gay marriage ban focus on family, fairness

As red numerals ticked away the minutes on a digital timer, lawyers fielded a barrage of questions from three federal appeals-court judges considering Utah’s ban on same-sex marriage.

In a rapid-fire series of exchanges, the 10th U.S. Circuit Court of Appeals judges repeatedly interrupted the lawyers and, at times, even one another. They directed Thursday’s discussion toward the role of parents in rearing children, the constitutional rights of gay couples and the right of states to govern their own affairs.

As viewed through a fisheye lens, Anna Simon of Denver carries a sign about the state of her marriage to her partner at a protest outside the Federal Courthouse in downtown Denver on Wednesday, April 9, 2014. The protest, sponsored by Support Marriage Equality in Colorado, was held as a federal appeals court weighs inside the Denver courthouse whether to give an important victory to gay couples' right to marry in Utah and Oklahoma. (AP Photo/David Zalubowski)

As viewed through a fisheye lens, Anna Simon of Denver carries a sign about the state of her marriage to her partner at a protest outside the Federal Courthouse in downtown Denver on Wednesday, April 9, 2014. The protest, sponsored by Support Marriage Equality in Colorado, was held as a federal appeals court weighs inside the Denver courthouse whether to give an important victory to gay couples’ right to marry in Utah and Oklahoma. (AP Photo/David Zalubowski)

The oral arguments in the Kitchen vs. Herbert case marked the first time that a state has defended its gay-marriage ban at the federal appellate level. It could take months for the judges to issue a ruling, and legal experts expect that the issue eventually will wind up before the U.S. Supreme Court. Scores of gay-marriage supporters and traditional-marriage supporters have submitted friends-of-the-court briefs.

 

Euell Santistevan of Denver holds a rainbow flag during a protest outside the Federal Courthouse in downtown Denver on Wednesday, April 9, 2014. The protest, sponsored by Support Marriage Equality in Colorado, was held as a federal appeals court weighs inside the Denver courthouse whether to give an important victory to gay couples' right to marry in Utah and Oklahoma. (AP Photo/David Zalubowski)

Euell Santistevan of Denver holds a rainbow flag during a protest outside the Federal Courthouse in downtown Denver on Wednesday, April 9, 2014. The protest, sponsored by Support Marriage Equality in Colorado, was held as a federal appeals court weighs inside the Denver courthouse whether to give an important victory to gay couples’ right to marry in Utah and Oklahoma. (AP Photo/David Zalubowski)

 

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Plaintiff Derek Kitchen and his partner Moudi Sbeity outside the Byron White U.S. Courthouse. (Kirk Mitchell, The Denver Post)

“I’m thrilled to be here with my partner,” said Derek Kitchen, kissing Moudi Sbeity outside the Byron White U.S. Courthouse in downtown Denver. “It was difficult to hear people arguing against us.”

About 100 spectators packed into the ornate courtroom with navy-blue carpet, wood molding and a glass-tiled ceiling with gold designs decorated with the seal of the United States. The three gay and lesbian couples who filed the lawsuit sat on a bench behind their attorneys’ table. They often smiled and squeezed each other’s shoulders.

An attorney for each side took turns standing at a lectern with the timer. Both were allowed to speak beyond the allotted 15 minutes, partly because of interruptions from the judges.

Two of the three justices on the panel seemed to telegraph their political inclinations with their questioning, while Jerome Holmes asked tough questions of both sides. Though appointed by President George W. Bush, Holmes and another circuit judge refused to stay a decision by a federal judge who found Utah’s gay-marriage ban unconstitutional. It allowed 1,335 gay and lesbian couples to marry before the U.S. Supreme Court temporarily restored the ban.

Judge Carlos F. Lucero, appointed by President Bill Clinton, frequently interrupted Gene Schaerr, an attorney for Utah who was the first to give oral arguments. Although Schaerr tried several times, he could never finish a four-tiered definition of marriage, which appeared to be a highlight of his argument.

When plaintiffs attorney Peggy Tomsic came to the podium, Judge Paul J. Kelly Jr., who rarely asked Schaerr questions, bored in, frequently cutting Tomsic off midsentence. Kelly was appointed by President George H.W. Bush.

At one point, Lucero even interrupted a question by Kelly, who wanted Tomsic to explain whether there was something wrong with a state legislature defining its own state law. Before Tomsic could answer, Lucero asked whether constitutional law didn’t trump state laws.

Tomsic smiled at Lucero’s softball pitch and answered that constitutional law trumped legislative decisions when state laws infringe on the rights of U.S. citizens. Tomsic’s chief argument was that Utah’s ban on gay marriage violated the 14th Amendment of the Constitution.

And so the hearing went.

Lucero asked Schaerr how Utah would treat children of a same-sex couple married in a state that allows gay marriages. The judge said it seemed to contradict Utah’s argument that the welfare of children was a major concern.

While acknowledging that children would be better off if their same-sex parents were married, Schaerr said it would likewise be better for thousands of children in polygamist households if they were allowed to legally marry.

“Let’s not talk about polygamy. Let’s talk about gay marriage,” Lucero said, setting off a peal of laughter through the courtroom.

Schaerr said the government has a legitimate interest in encouraging heterosexual marriages between a child’s biological parents. Allowing same-sex marriages would dilute that message, he said. A lesbian couple could conceive a child through artificial insemination and the child would not have a masculine role model, he said.

Schaerr told justices a key risk of gay marriage is that children are raised by someone other than their natural parents and that those children have a higher rate of criminal behavior. He said it also changes the primary role of marriage from being child-centric to adult-centric.

Later in the hearing, Kelly brought up polygamy again. He asked Tomsic why she would discriminate against polygamist households, if everyone has a right to marry.

Tomsic argued the gay-marriage ban violates the rights of only one class of citizen — same-sex couples.

“Every day, same-sex families face the stigma and harm of being treated like second-class citizens,” Tomsic said.

After the hearing, Utah Attorney General Sean D. Reyes spoke with Kitchen and Sbeity. He said he told them the case was not intended to be personal.

Reyes also said the federalism argument will be the key to the court’s decision.

“We didn’t create a second class of people to harm them,” he said.

The same panel of judges will hear oral arguments in Oklahoma’s gay-marriage case next Thursday. Colorado has two same-sex marriage cases.

Kirk Mitchell: 303-954-1206, denverpost.com/ coldcaseskmitchell or twitter.com/kmitchelldp

DENVER, CO. - APRIL 10:  Utah Plantiffs from left to right, Derek Kitchen and partner, Moudi Sbeity, Kate Call and partner, Karen Archer, Laurie Wood and partner, Kody Partridge, stand outside of the Byron White U.S. Courthouse during a press conference Thursday morning, April 10, 2014 after the U.S. Court of Appeals for the 10th Circuit listened to oral arguments on the gay marriage ban in Utah. (Photo By Andy Cross / The Denver Post)

DENVER, CO. – APRIL 10: Utah Plantiffs from left to right, Derek Kitchen and partner, Moudi Sbeity, Kate Call and partner, Karen Archer, Laurie Wood and partner, Kody Partridge, stand outside of the Byron White U.S. Courthouse during a press conference Thursday morning, April 10, 2014 after the U.S. Court of Appeals for the 10th Circuit listened to oral arguments on the gay marriage ban in Utah. (Photo By Andy Cross / The Denver Post)

Source: The Denver Post, “10th Circuit arguments on gay marriage ban focus on family, fairness,” By Kirk Mitchell, Posted:  04/10/2014 08:17:52 AM MDT | Updated:   about 10 hours ago

U.S. Court Seems Split on Utah Gay Marriage Ban

Plaintiffs on Utah’s Ban on Gay Marriage Two of the plaintiffs in a case challenging Utah’s ban on gay marriage, Moudi Sbeity and Derek Kitchen, discussed why they were pursuing the lawsuit. Photo: Jim Auley, The New York Times

Plaintiffs on Utah’s Ban on Gay Marriage
Two of the plaintiffs in a case challenging Utah’s ban on gay marriage, Moudi Sbeity and Derek Kitchen, discussed why they were pursuing the lawsuit.
Photo: Jim Auley, The New York Times

DENVER — The push for same-sex marriage, which has celebrated victory after victory in courtrooms across the country, entered an uncertain stage on Thursday as a federal appeals court appeared divided about whether the socially conservative state of Utah could limit marriage to a man and a woman.

In an hour of arguments inside a packed courtroom, three judges from the Federal Court of Appeals for the 10th Circuit sparred with lawyers about how such bans affected the children of same-sex parents and whether preventing gay couples from marrying actually did anything to promote or strengthen heterosexual unions and families.

Judge Paul J. Kelly, who was nominated by the elder President Bush, appeared more deferential to Utah’s voters and its legislature while Judge Carlos F. Lucero, a Clinton appointee, asked pointed questions about whether Utah was stigmatizing children of gay couples. Legal observers said the deciding vote appeared to belong to Judge Jerome A. Holmes, who was nominated by President George W. Bush, and lofted tough questions at both sides.

“Why does it matter who’s claiming the right?” Judge Holmes asked a lawyer representing Utah. “It’s a fundamental right, and why does it matter the participants in that enterprise? Why does it matter?”

Thursday’s arguments signaled the first time an appeals court had considered the issue since the Supreme Court handed two major victories to gay-rights supporters last summer, striking down a law that denied federal benefits to same-sex couples and clearing the way for same-sex marriages across California.

It was a day freighted with emotion for gay-rights supporters and same-sex couples in Utah. Dozens flew to Denver from Utah to attend the arguments, lining up early Thursday morning for a seat in the courtroom. A conservative state lawmaker was one of a handful of supporters of the ban to attend the hearing. “Our lives are on the line here,” said Derek Kitchen, the plaintiff who lent his last name to the case — Kitchen v. Herbert. Gary R. Herbert is Utah’s Republican governor.

As Mr. Kitchen and the other plaintiffs chatted and exchanged reassuring pats on the shoulder in the courtroom, they were approached by Utah’s attorney general, Sean Reyes, whose office has taken the lead role in defending the same-sex marriage ban. Shaking hands and greeting the plaintiffs, Mr. Reyes crouched down and told them: “I’m sorry that we’re causing you pain. Sometime after the case is over, I hope we can sit down.”

After the hearing, Mr. Reyes said he had told the plaintiffs that the legal confrontation was not personal, and that he knew that the plaintiffs’ families were as important to them as his own was to him. But he said it was unclear what would happen to the unions and benefits of Utah’s newly married same-sex couples if the state prevailed in its appeals. Utah has previously raised the possibility that those marriages could be dissolved.

Separately, in Indiana on Thursday, a federal judge ruled that the state must, for now, recognize the same-sex marriage of a woman who is terminally ill. Nikole Quasney and Amy Sandler have two children and joined one of five lawsuits challenging the state’s ban on same-sex marriage last month, citing the need to have their relationship legally recognized in order to access benefits for surviving family members. Ms. Quasney received a diagnosis of ovarian cancer in 2009; the couple married in Massachusetts last year.

Source:  The New York Times, “U.S. Court Seems Split on Utah Gay Marriage Ban,” by Jack Healy, April 10, 2014

BREAKING: Utah Gov. Strips Marriage Rights from Lawfully Wed Same-Sex Couples

Today Utah Governor Gary Herbert’s office directed state agencies not to recognize as valid the legal marriages of same-sex couples performed after a federal court ruled in favor of marriage equality in December.  Human Rights Campaign (HRC) president Chad Griffin issued the following statement:

“Today’s decision harms hundreds of Utah families and denies them the respect and basic protections that they deserve as legally married couples,” said HRC president Chad Griffin.  “Governor Herbert has once again planted himself firmly on the side of discrimination by preserving the second-class status he believes gay and lesbian Utahans merit. These families deserve better and I have no doubt the courts will soon grant them the justice and equality that our Constitution demands.”

On Monday, the U.S. Supreme Court granted a stay in the marriage challenge while the lower court decision is on appeal to the U.S. Court of Appeals for the Tenth Circuit. Before the stay was issued, more than 1,000 same-sex couples were legally married in Utah.

Source: BREAKING: Utah Gov. Strips Marriage Rights from Lawfully Wed Same-Sex Couples, January 8, 2014