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10th Circuit Rules States Cannot Ban Same Sex Marriage

The 10th Circuit Court of Appeals has affirmed a lower court's ruling that Utah's ban on same sex marriage is unconstitutional.

The opinion is here.

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.

This appears to be the first federal appeals court ruling on the constitutional issue since the Supreme Court struck down the Defense of Marriage Act. [More...]

The Utah ruling is especially significant because it is the first appellate court to conclude that last year's Supreme Court decision means states cannot deny gays the ability to marry.

While the Times reports the decision has been stayed pending appeal, the county of Boulder, Colorado has already announced it will begin handing out licenses today.

In response to the historic ruling in the 10th Circuit Court today, Boulder County Clerk and Recorder Hillary Hall will begin issuing same sex marriage licenses immediately, beginning today, June 25, 2014 in our Boulder office at 1750 33rd Street, and in our Lafayette and Longmont offices starting Friday, June 27, 2014.

Because 10th Circuit decisions are binding in the State of Colorado, the precedent established by Kitchen v. Herbert is applicable to the same-sex marriage ban contained in the Colorado Constitution. The Tenth Circuit found that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex.”

Clerk Hall intends to uphold the fundamental right to marriage now recognized by 10th Circuit by issuing marriage licenses to any person who wishes to marry. “Couples across Colorado have been waiting a long time to have their right to marry the person they love recognized,” stated Boulder County Clerk Hillary Hall. “I want to act immediately to let them carry out that wish.” Marriage licenses will be issued at the Boulder County Clerk and Recorder’s office in Boulder today until 4:30 p.m. and will resume tomorrow at 8 a.m.

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  • Display: Sort:
    They are saying (none / 0) (#1)
    by CaptHowdy on Wed Jun 25, 2014 at 05:04:39 PM EST
    The Supreme Court may not take the case since the lower courts have been so unanimous.  That they like to wait until there is some disagreement in the lower courts.  
    Curious if the lawyers her eager with that.

    This lawyer, for one, (5.00 / 1) (#7)
    by Peter G on Wed Jun 25, 2014 at 08:39:06 PM EST
    does agree that it is quite possible the Supreme Court won't take up the issue. Why, when and whether they choose to take an issue, and in which case (they have the pick of the orchard, after all), is an enormous mystery.  For example, two years ago the Court held in Miller v. Alabama that states' sentencing laws that mandate life imprisonment for all juveniles convicted of murder (rather than allowing discretion, in other words) are unconstitutional.  Various state and federal courts are already deeply and intractably divided over the question whether Miller is retroactively applicable to past sentences still being served.  The issue affects hundreds of prisoners in a profound and fundamental way.  Yet in the last couple of weeks, the Court turned away all the cases asking them to decide this undeniably important issue, which no one else can settle, of whether their own decision is retroactive. There's just no predicting.

    Parent
    I tended to think (none / 0) (#12)
    by CaptHowdy on Thu Jun 26, 2014 at 08:46:42 AM EST
    They might want to stay out of it.  At least for a while.  Even the conservatives might not want it because I think they probably know it would not produce the outcome they want.  

    But what do I know

    Parent

    Grrr (none / 0) (#2)
    by CaptHowdy on Wed Jun 25, 2014 at 05:05:27 PM EST
    If the lawyers here AGREE with this.

    Parent
    This is an interesting question. (none / 0) (#3)
    by KeysDan on Wed Jun 25, 2014 at 07:12:45 PM EST
    It is very likely that the case will reach the Supreme Court by way of a cert petition from the State of Utah.  If four of the nine justices grant the petition, the case will proceed, otherwise the case ends.  The decision of the lower court stands.

    The granting of a certiorari petition should be for a compelling reason including a Circuit split that requires resolution of a conflict in federal law or the US constitution; resolving questions of federal law; review of a lower court decision that conflicts with Supreme Court precedent; or correcting procedural errors.  

    So far, there has not been split (this is the first appellate decision).  Also, in Windsor, a definitive constitutional right  to same sex marriage was not made, although this has been reached by District judges through a layering of Windsor and previous cases (e.g., Lawrence v Texas).

    And there are other aspects of constitutional law that have emerged, such as in the Louisiana case (initially limited to recognition of same sex marriages performed in other states, but expanded by the judge) as to  whether the first amendment's guarantee of free speech is violated by forcing married same sex couples to list themselves as single on state income tax returns.  

    If the Supreme Court did not take the case and let the lower courts rulings stand (assuming that there continues to be no split), this would be a convenient and low-keyed way for the Supreme Court to finish this unfinished symphony.  And, to stop, immediately, the unconscionable stays for lower court findings of unconstitutionality of state bans.  However, this is a politically-charged situation with, no doubt,  justices Scalia, Alito and Thomas, chomping at the bit.  My feeling is that the Supreme Court will take the case, but who knows for sure.

    Parent

    Thanks (none / 0) (#6)
    by CaptHowdy on Wed Jun 25, 2014 at 07:22:19 PM EST
    Wouldn't that be something? (none / 0) (#8)
    by MKS on Wed Jun 25, 2014 at 10:16:15 PM EST
    But it would seem the issue would make its way back to the Supreme Court someway or other.

    Parent
    The 10th Circuit, historically .... (none / 0) (#4)
    by christinep on Wed Jun 25, 2014 at 07:18:49 PM EST
    has been in-the-middle relative to the other Circuits.  I looked quickly at the issuance.  The finding of a 14th Amendment protection, with qualifying, is straightforward & strong.  As I emailed a friend, when societal consensus reaches a certain evolutionary state, change can seem to happen fast.

    On a personal note:  The 10th Circuit provided my first real legal employment shortly out of law school ... it is a pleasant surprise to see that my first employment home rendered such an important decision.

    "without qualifying" (not w/qualifying) (none / 0) (#5)
    by christinep on Wed Jun 25, 2014 at 07:21:55 PM EST
    Not the first circuit decision on SSM (none / 0) (#9)
    by bmaz on Wed Jun 25, 2014 at 10:56:42 PM EST
    The first circuit decision on SSM was the 9th, however it was later vacated because of the SCOTUS cowardice on the standing issue.

    As to whether SCOTUS will take cert, I think  they will soon, although the 10th decision in Kitchen is pretty flaky on their scrutiny discussion; would like to see a tighter decision be the vehicle for SCOTUS review.

    You misread the quoted commentary (5.00 / 1) (#10)
    by Peter G on Wed Jun 25, 2014 at 11:02:30 PM EST
    It is the first Circuit-level decision to interpret and apply last year's Windsor opinion, is what it says, necessarily meaning the first since last June.

    Parent
    Yes, okay (none / 0) (#11)
    by bmaz on Wed Jun 25, 2014 at 11:12:38 PM EST
    Now that you mention it, that is true. However, the claim it is the first at all has been floating around the net today. Maybe that technically is true too because Perry reverted to the CAND decision. Perhaps it doesn't really count. Thought it appropriate to point out.

    Parent