10th Circuit Upholds Ruling Striking Down Utah’s Ban on Gay Marriage


The Tenth Circuit Court of Appeals has struck down Utah's gay marriage ban. The court has granted a stay pending appeal to SCOTUS.

The ruling was 2-1 with Judge Kelly dissenting.

The Salt Lake Tribune reports:

By upholding a Utah judge’s decision, the 10th Circuit Court of Appeals became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

But the court stayed the implementation of their decision, pending a decision from the U.S. Supreme Court.

The split ruling affects all states in the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The appeals court judges appeared split on the decision during oral arguments in April, with pointed questions asked by the three judges — Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes — about marriage studies, jurisdiction and standard of scrutiny.

Here's the ruling




  1. Cd in Dc says

    get down Utah, who’d have thought the lead in this debate would be the Tenth Circuit, famously the home of Orrin Hatch and Clarence Thomas, and the Supreme Court of Iowa which undid their state’s marriage ban as unconstitutional without a public vote?

  2. Lexis says

    I see how the ruling uses the phrase “based solely on the sex of the persons” – seemingly making it not about orientation, but gender discrimination.

  3. Keith says

    Congratulations to all our friends in the 10th District! Let’s hope that by June 2015, marriage equality extends from coast to coast, and throughout every corner of these United States.

  4. JackFknTwist says

    It is really heart warming and emotional to see this tide build wave after wave and it’s reassuring to see prejudice and bigotry being drowned by the inexorable rise.

    The venomous spite of religions and their accompanying lure of self delusion are all becoming objects of derision as humanity starts believing in itself rather than promises of ‘heaven’ or ’73 virgins’.

    These are good days to be alive.

  5. Randy says

    ” the 10th Circuit Court of Appeals became the first appeals court to rule on the issue”

    The 9th Circuit is going to be crushed. After being the first court to rule on the issue (post-Baker, and pre-Windsor) their ruling is erased due to lack of standing, and is already forgotten.

  6. Zlick says

    I just finished reading the ruling. More fun than most because, in many of it’s 108 pages, it’s such a BURN on Utah and its rank hypocrisy.

    None of the flowery concluding language we’ve seen in the last few district court rulings … but as those rulings pile up, there’s and more cases to cite in later rulings. This one, naturally, cites to Lawrence and Windsor most often, but it’s hilarious to see its list of umpteen district court equal marriage rulings and liberal cites to those as well.

    Of course, no equal marriage ruling would be complete without citing to Scalia’s dissent in Windsor. Bwahahaha, always fun to push his nose in it.

    Ok, now on to reading the Indiana decision!

  7. MiddleoftheRoader says

    Very interesting and important court decision for a few reasons:

    1) Unlike almost every court (maybe every court) that struck down marriage bans after the Windsor decision, the 10th Circuit actually applied the “strict scrutiny” (also called “compelling interest”) test. The 10th Circuit ruled that the reasons against marriage were NOT sufficiently compelling. What is significant is that the 10th Circuit did NOT say that there is no “rational basis” for a marriage ban. So, if the Supreme Court reviews this case, it could uphold the 10th Circuit — OR it could say that the 10th Circuit applied the wrong legal standard and so the decision must be reversed and sent back to the 10th Circuit to review the marriage ban under a “rational basis” test.

    2) The 10th Circuit found that marriage is a “fundamental right” — and that’s why the “compelling interest” (or “strict scrutiny”) test should be applied. In this regard, most of the other courts have also found that marriage, even same-sex marriage, is a “fundamental right”. The issue remains whether the Supreme Court will say that “traditional marriage” is a “fundamental right” (ie, opposite-sex) or whether it will say that marriage is marriage is marriage, and the right to marry (same or opposite sex) is a “fundamental right”. That’s going to be a key issue for the Supreme Court (and other Courts of Appeals that are deciding similar cases).

    3) If you want to know what a Supreme Court opinion that UPHOLDS BANS on same-sex marriage would look like, just read the DISSENTING OPINION in the 10th Circuit case. It could have been written by Scalia, Thomas, Alito or Roberts — and maybe that’s exactly what those Justices will say. The only important question in ALL of these marriage cases is: What will Justice Kennedy say? That’s merely a guess at this point.

  8. simon says

    The court uses sexes instead of sexual orientation indicates marriage can be between one man one woman, two men or two women. They don’t even need to be romantically and sexually attracted to each other. As some trolls here have pointed out that two best friends can marry to get federal benefits. Stupid trolls usually think it is OK for one man one woman but not OK for other cases.
    The fact is there is and always has been no requirement imposed on why two persons want to marry. If they get married solely for some financial gain, it is perfectly legal. It has always been a headache for the immigration department that some foreigners paid US citizens to take part in a fake marriage in order to gain permanent residency. That seems to be the only situation which is illegal.

  9. hirotomo says

    The majority opinion was interesting in that it applied strict scrutiny, but I think the dissenting opinion was actually more interesting *because* the majority opinion had applied strict scrutiny. In fact, the dissenting opinion intends to suggest that the strict scrutiny basis was necessary for their opinion. This goes against other rulings in accord that did not apply strict scrutiny.

    Beyond the rational basis scrutiny reason for dismissing much of the majority opinion is an underlying sense of “this is how I feel, and I don’t have to justify it to anyone” in Judge Kelly’s dissent. This is shown both directly in the last two sentences of the third paragraph of section E (middle of page 80 of the pdf) as well as indirectly through unsubstantiated claims like “Far more opposite-gender couples will produce and care for children than same-gender couples and perpetuation of the species depends upon procreation” (the first full sentence on page 83).

    The sad part here is that the dissent concurrently acknowledges and defends the flimsiness of justifications for a discriminatory statute as sufficient as long as it passes legislatively. Furthermore, it suggests that said discrimination will “perhaps someday” end and that the courts should not intervene. This evidences a lack of respect for the use of the Equal Protection clause to protect minority groups from discriminatory statutes.

    Without the (questionably necessary) application of strict scrutiny in the majority opinion, I wonder if such an appalling dissent would have been written.

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