June 25 (Bloomberg) -- Proponents of same-sex marriage in the U.S. reached a milestone today when a federal appeals court ruled Utah’s ban on gay marriage is unconstitutional, setting the stage for possible review by the U.S. Supreme Court.
The decision by a three-judge panel of the U.S. Court of Appeals in Denver is the first appellate ruling since the high court last year struck down a provision of the Defense of Marriage Act that barred the federal government from recognizing gay marriages.
The U.S. Constitution “protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of a state’s marital laws,” the judges said in a 2-1 ruling. “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.”
The court delayed implementation of its ruling pending further appeals. A decision in a challenge to Oklahoma’s ban on same-sex marriage, heard by the Denver-based appeals court one week after the Utah arguments, is outstanding. A federal appeals court in Virginia is also weighing the issue.
The Utah decision and another today by a U.S. judge in Indianapolis continue a streak of at least 17 consecutive state and federal court rulings since September finding a right to either same-sex marriage or recognition of such marriages performed in other states.
Those decisions follow the Supreme Court’s June 2013 ruling in U.S. v. Windsor requiring the federal government to recognize same-sex marriages from states where they’re legal. The high court decision touched off litigation over gay-marriage bans in Texas, Wisconsin, Ohio, Kentucky and elsewhere, and led to decisions invalidating laws in New Jersey, Arkansas, Virginia and Michigan.
Voters, legislatures or courts in more than half the states have authorized gay marriage, though some rulings are on hold pending appeals.
Utah Attorney General Sean Reyes, a Republican, said in an e-mailed statement that he’ll appeal to the Supreme Court, which isn’t required to hear the case. Reyes, noting there was a partial dissent, said he may also seek review from all judges on the Denver-based appeals court.
Republican Governor Gary Herbert said in a statement that he was “disappointed” by the decision.
“I believe states have the right to determine their laws regarding marriage,” Herbert said.
The Utah decision followed a Dec. 20 ruling by a lower-court judge that the state’s voter-approved ban on same-sex marriage violates the Constitution. More than 1,000 couples received marriage licenses from Dec. 23 to Jan. 6.
After the Supreme Court put the ruling on hold to allow for an appeal, Utah refused to grant marital benefits to those couples, sparking even more litigation.
U.S. Circuit Court Judge Jerome Holmes, who was appointed to the court in 2006 by President George W. Bush, joined U.S. Circuit Court Judge Carlos Lucero, a 1995 appointee of President Bill Clinton, in today’s opinion. U.S. Circuit Court Judge Paul J. Kelly, a 1991 appointee of President George H.W. Bush, said in dissent that the Constitution doesn’t grant a “fundamental right” to same-sex marriage.
Other U.S. appeals courts are considering challenges to state bans. Conflicting rulings among those courts would make a return to the Supreme Court more likely.
“The journey to ensuring the freedom to marry for all just got a huge boost,” John Mejia, legal director of the American Civil Liberties Union of Utah, said in an e-mailed statement.
Also today, a U.S. judge in Indianapolis ruled that Indiana’s same-sex marriage ban violated guarantees of equal protection.
“The state’s laws place same-sex marriages in a second-class category, unlike other marriages performed in other states,” U.S. District Judge Richard Young said.
Indiana Attorney General Greg Zoeller today asked the court to stay enforcement of the ruling pending an appeal.
The Utah case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the 10th Circuit (Denver). The Oklahoma case is Bishop v. Smith, 14-5003 and 14-5006, U.S. Court of Appeals for the 10th Circuit (Denver).
To contact the reporters on this story: Erik Larson in New York at firstname.lastname@example.org; Andrew Harris in federal court in Chicago at email@example.com; Joel Rosenblatt in San Francisco at firstname.lastname@example.org