June 26 (Bloomberg) -- Same-sex couples have a “fundamental” right to marry, the first U.S. appeals court to address the issue ruled, throwing out Utah’s ban on gay unions and setting the stage for possible U.S. Supreme Court review.
The decision yesterday by a three-judge panel of the U.S. Court of Appeals in Denver, and another overturning a ban in Indiana, extends a winning streak by proponents of gay marriage. At least 17 consecutive state and federal court rulings since September have upheld a right to either same-sex marriage or recognition of such marriages performed in other states.
The Utah decision 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. States governed by the decision include Wyoming, Kansas, Oklahoma, New Mexico and Colorado.
The U.S. Constitution “protects the fundamental right to 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.”
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 11 judges on the court.
A decision is pending in a challenge to Oklahoma’s ban on same-sex marriage, heard by the Denver-based court one week after the Utah arguments. The appeals court in Richmond, Virginia, is also weighing the issue. Any conflicting opinions among the courts would make the Supreme Court more likely to take the case.
To date, voters, legislatures or courts in more than half the states have authorized gay marriage.
The surge of litigation followed 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. Lawsuits challenging gay-marriage bans were brought in Texas, Wisconsin, Ohio, Kentucky and elsewhere, and led to decisions invalidating laws in New Jersey, Arkansas, Virginia and Michigan.
The Denver-based appeals court yesterday upheld 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 that ruling on hold to allow for an appeal, Utah refused to grant marital benefits to those couples, sparking even more litigation.
The appeals court in Denver yesterday delayed its ruling from taking effect to allow for further appeals.
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 yesterday’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.
U.S. District Judge Richard Young in Indianapolis, in line with the court in Denver, ruled yesterday that Indiana’s same-sex marriage ban violated the Constitution’s guarantees of equal protection.
“The state’s laws place same-sex marriages in a second-class category, unlike other marriages performed in other states,” Young said.
Indiana Attorney General Greg Zoeller 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).
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