The court danced around that question precisely one year ago when it issued a pair of rulings on gay marriage. The high court’s caution was evident in its rulings: It upheld a decision striking down California’s gay marriage ban but relied on technicalities rather than finding a national right for same sex couples to marry. Then it struck down parts of the Clinton-era federal Defense of Marriage Act, finding same-sex marriages from states where the practice was legal must be recognized.
That decision triggered an avalanche of 17 straight court decisions upholding the rights of gays to marry, including June 25’s 2-1 ruling in Denver from the 10th Circuit Court of Appeals, the highest court to weigh in since the Supreme Court. Utah, whose gay marriage ban was struck down in the decision, is considering an appeal to the Supreme Court. Same-sex marriage is now legal in 19 states and the Washington capital district, and recent polls show a majority of Americans support it.
“This tees it up for possible Supreme Court review,” said William Eskridge, a law professor at Yale University. “When a federal appeals court strikes down a major state law, there is a lot more pressure for the justices to take that.”
There is no guarantee that the Utah case will be the one that makes it to the top court. Five other appellate courts are considering similar cases, and any of those could be the one taken. The soonest a case could be decided is 2015, but often the Supreme Court waits for a split in appellate courts before considering an issue.
That was on display in Colorado on June 25, when the county clerk in the liberal city of Boulder announced she would issue same-sex marriage licenses even though the 10th Circuit —which along with Colorado and Utah includes, Kansas, New Mexico, Oklahoma and Wyoming — stayed its decision pending appeal. The state’s attorney general declared the licenses invalid because Colorado’s gay marriage prohibition is still the law, but Clerk and Recorder Hillary Hall said she would continue to issue them until stopped by a court.
June 25’s ruling stressed the urgency of overturning gay marriage bans rather than waiting for new laws to be written by elected officials.
The ruling came down just minutes after a federal judge threw out that Indiana’s same-sex marriage ban in a decision that immediately allows gay couples to wed. But the legal significance of the appeals court ruling is far greater because it is one level higher on the legal food chain.
Evan Wolfson, president of Freedom to Marry, said Utah’s legal victory was sweeter because of where it originated — a conservative, deeply religious state in the heart of the mountain West.
“What is so powerful here is that we have the first federal appellate court and ... it’s a case coming out of Utah affirming in the strongest, clearest, boldest terms that the Constitution guarantees the freedom to marry and equal protection for all Americans and all means all, including gay couples,” he said.
The Church of Jesus Christ of Latter-day Saints, based in Salt Lake City, said it maintains marriage should be between a man and a woman, but believes “all people should be treated with respect.”
Following the ruling, Colorado’s Boulder County began issuing more same-sex marriage licenses June 26. Colorado’s attorney general said the licenses weren’t valid both because the Utah ruling has been placed on hold and because a Colorado state ban remains in place. But the county clerk said she’ll issue licenses unless a court tells her otherwise. Couples were lined up when the office opened its doors.
Boulder County was among the first to issue same-sex marriage licenses nearly 40 years ago. Six couples were issued licenses and married in 1975 before the state attorney general intervened.
And in St. Louis, officials challenged Missouri’s constitutional ban on gay marriage by issuing four same-sex marriage licenses June 26 in a City Hall ceremony.
On the Web:
Ruling from 10th U.S. Circuit Court of Appeals, https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf