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Same-Sex Marriage Decision in Utah Could Go All the Way to the Supreme Court This Fall Same-Sex Marriage Decision in Utah Could Go All the Way to the Supreme...

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Politics

Same-Sex Marriage Decision in Utah Could Go All the Way to the Supreme Court This Fall

A decade after 11 states banned gay marriage, the fight is overwhelmingly being waged by advocates.

June 25, 2014

A case in Utah could be the first legal challenge to same-sex marriages bans at the state level to make it to the U.S. Supreme Court this fall.

A three-judge panel for the 10th Circuit Court of Appeals ruled Wednesday that Utah's ban on same-sex marriage is unconstitutional. "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," the panel wrote. "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."

The judges did, however, grant a stay. Same-sex marriages will not yet be performed in Utah while state Attorney General Sean Reyes, a Republican, pursues an appeal. Reyes has already said he will appeal the case to the nation's highest court, the Associated Press reported.

The decision represents the broadest ruling on same-sex marriage yet by a Circuit Court, Sarah Warbelow, the legal director for the Human Rights Campaign, a gay-rights advocacy group, said Wednesday. That could set up the Utah case for a Supreme Court battle when the Court resumes in October.

Warbelow noted, however, that similar cases are being heard in other Circuit Courts across the country, any of which could be brought up by the Supreme Court. For example, the 10th Circuit Court is also considering a case concerning Oklahoma's refusal to recognize same-sex marriages performed out-of-state. A decision in that case, which was argued at the same time as the Utah case, could come any time. And, although it deals solely with out-of-state marriages, it could be interpreted broadly by the Court and used to legalize marriage within Oklahoma's borders as well.

Also Wednesday, a lower federal court ruled that Indiana's ban on same-sex marriage is unconstitutional. The judge did not grant a stay and called on the state to begin issuing marriage licenses. At least one justice has already begun doing so, according to Warbelow, but given the attorney general's decision to appeal, those issuances could come to a halt at any time.

It is unclear how the Indiana decision will affect the state Legislature's push to add a ban on same-sex marriage to the state's constitution. Although the state has had a law on the books banning same-sex marriage for years, the state constitution is one of the few in the country that never had one. The Legislature passed a constitutional ban earlier this year, but will have to pass it again in the 2015 or 2016 legislative sessions. Only then can it appear on the 2016 ballot, where voters will also have to approve of the ban in order for it to be added to the state's constitution.

The decisions in Utah and Indiana follow a growing national pattern. Since the Supreme Court struck down the Defense of Marriage Act last summer, judges across the country have ruled against bans on same-sex marriage in nearly every case brought before them. A federal court in Mississippi is the only one this year to have ruled against same-sex marriage and that case is on appeal.

Attorneys are now arguing cases in favor of same-sex marriage in every state that does not currently allow it.

Just a decade after Massachusetts became the first state in the nation to legalize same-sex marriage, gay couples in 19 states and the District of Columbia can now marry. In seven other states so far this year, a judge has ruled in favor of gay marriage but granted a stay to halt those unions while the cases are on appeal.

Forty-four percent of Americans now live in a state that allows same-sex marriage, according to the Human Rights Campaign, while three other states have legalized civil unions and domestic partnerships.

In a sign of changing times, the fight over marriage rights is overwhelmingly being waged by activists who favor same-sex marriage, rather than those working to restrict marriage to heterosexual couples. A decade after 11 states passed constitutional bans on same-sex marriage thanks to a coordinated effort by supporters of former President George W. Bush to boost his poll numbers, only one state—Indiana—is currently pursuing limitations to the marriage rights of same-sex couples. Meanwhile, efforts are underway in 31 states to expand them.

Legislatures in seven states—Arizona, Idaho, Kansas, Ohio, South Dakota, Tennessee, and Utah—have pushed bills that would allow businesses that object on religious grounds to refuse service to same-sex couples. Arizona Gov. Jan Brewer, a Republican, vetoed such legislation in her state in February.

Take a look at the current battleground over same-sex marriage below, including current laws in all 50 states, lawsuits filed by same-sex couples to overturn state bans, and state legislatures that are working to alter their marriage laws.

We'll keep this updated periodically with new cases and legislative efforts. See something we missed? Send us an email.

For an interactive version of this map, click here.

States with court or legislative action

Alabama State Bullet ALABAMA: Paul Hard filed suit to overturn the state's constitutional ban on same-sex marriage this month, after his husband, David Fancher, died in a 2011 car accident. According to the Southern Poverty Law Center, Hard was barred from entering the hospital room and inquired for half an hour about his husband's condition before a nurse told him: "Well, he's dead." Fancher, who married Hard in Massachusetts earlier that year, was buried with the status "single" on his death certificate. Hard is suing so that he can be named a surviving spouse in a wrongful-death suit.

Alaska State Bullet ALASKA: Five gay couples filed suit in Anchorage in May to overturn the state's 1998 constitutional ban on same-sex marriage.

Arizona State Bullet ARIZONA: In January, four couples filed a class-action lawsuit to overturn the state's constitutional and legal bans on same-sex marriage, as well as to force the state to recognize out-of-state marriages. Two of the couples have adopted children through the state's foster-care system. The Arizona Legislature approved a measure that would allow businesses and religious organizations to choose not to serve same-sex couples this month. It is headed to Republican Gov. Jan Brewer's desk for her signature

Arkansas State Bullet ARKANSAS: A judge ruled against Arkansas' 2004 constitutional ban on same-sex marriages in May, siding with 11 gay and lesbian couples who sued the state. After the initial ruling, same-sex couples in Arkansas were issued marriage licenses, but judge Chris Piazza soon issued a stay, halting further marriages while the case goes through the appeals process.

Three other couples filed a separate suit seeking the right to marry in July, 2013.

Colorado State Bullet COLORADO: Civil unions became legal in Colorado last year, but the state maintains a constitutional amendment passed in 2006 that defines "marriage" as a union between a man and a woman. Nine same-sex couples filed suit in state court for full marriage rights this month.

Florida State Bullet FLORIDA: Six same-sex couples from the Miami area, along with the National Center for Lesbian Rights and the Equality Florida Institute, filed suit in January to overturn the state's 2008 voter-passed ban on gay marriage.

The ACLU, along with eight other same-sex couples, filed a separate suit in March.

Georgia State Bullet GEORGIA: Lambda Legal filed suit in April to overturn Georgia's constitutional ban on same-sex marriages, as well as to force the state to recognize gay marriages performed outside of its borders. Three couples are participating in the case, as well as a woman whose partner died and desires to be listed on her death certificate.

Idaho State Bullet IDAHO: A federal judge ruled in favor of four couples from Boise and the National Center for Lesbian Rights, finding the state's 2006 ban on gay marriage unconstitutional. That decision was stayed by a separate court, while Republican Gov. Butch Otter pursues an appeal.

Idaho is also considering legislation that would allow businesses and religious organizations to elect not to serve same-sex couples on the basis of religious objection.

Indiana State Bullet INDIANA: Four gay couples filed suit in March to overturn Indiana's 1997 law banning same-sex marriage. Indiana is one of just four states with a legal, but not constitutional, ban.

This year, both chambers of the state Legislature approved a separate constitutional ban, which will have to be approved by voters. But first, the legislature will have to pass the legislation again in the 2015 or 2016 session in order to put the issue on the ballot in 2016.

Kansas State Bullet KANSAS: Two couples filed suit in December, seeking recognition of their out-of-state marriages for tax purposes. The suit does not address the legality of marriages performed within the state. The state is also pursuing legislation that would allow businesses and religious organizations to elect not to serve same-sex couples on the basis of religious objection.

Kentucky State Bullet KENTUCKY: A U.S. District Court judge ruled in February that the state must recognize out-of-state same-sex marriages, but stayed that decision while Democratic Gov. Steve Beshear and outside counsel pursue an appeal. The judge also allowed two same-sex couples, who filed a motion in the case seeking the right to marry within Kentucky's borders, to join the ongoing suit.

Louisiana State Bullet LOUISIANA: Six same-sex married couples have filed three separate lawsuits seeking state recognition of their marriages, but not a legalization of the practice within the state.

Michigan State Bullet MICHIGAN: A U.S. District Court judge ruled in March that the state's 2004 ban on same-sex marriage is unconstitutional. Hundreds of gay and lesbian couples were married the day after the ruling was issued, but hours later, a separate court granted a stay, halting further marriages while the case is appealed.

Mississippi State Bullet MISSISSIPPI: Lauren Beth Czekala-Chatham filed suit in late 2013 to force the state of Mississippi to recognize her marriage in order to grant her a divorce. A federal judge decided against Czekala-Chatham in December, ruling that the state does not recognize her marriage and therefore would not grant a divorce. Czekala-Chatham is appealing.

Missouri State Bullet MISSOURI: The American Civil Liberties Union and a state-based gay-rights organization filed suit on behalf of eight same-sex married couples in February, requesting that Missouri recognize their unions. The lawsuit, if successful, would not overturn the state's 2004 constitutional ban on same-sex marriages within the state.

Montana State Bullet MONTANA: The Montana chapter of the ACLU filed suit against state officials in May on behalf of four same-sex couples seeking to overturn the state's 2004 constitutional ban on same-sex marriage.

Nebraska State Bullet NEBRASKA: A same-sex couple in Nebraska filed suit in 2013 seeking recognition of their marriage in order to get a divorce. They were legally married in Iowa in 2009.

Nevada State Bullet NEVADA: Nevada legalized domestic partnerships in 2009, but advocates continue to push to overturn the state's constitutional definition of "marriage" as a union between a man and a woman. Republican Gov. Brian Sandoval and the state attorney general announced this month that they would not defend the state's marriage ban in an ongoing appeals-court battle. And the state Legislature approved a same-sex marriage bill last year. Both chambers will have to pass the legalization bill again in 2015 for it to be put before voters on the 2016 ballot.

North Carolina State Bullet NORTH CAROLINA: Six couples are seeking to overturn a gay marriage ban approved by voters in 2012, as well as the ability to adopt children. The state filed a motion to dismiss the case in September, and the state legislature has retained legal counsel to defend the constitutional ban.

Separately, the United Church of Christ has filed a federal lawsuit seeking to overturn a North Carolina law banning "religious blessing" of same-sex unions.

North Dakota State Bullet NORTH DAKOTA: Seven same-couples filed suit in June to overturn the state's 2004 voter-approved ban on gay marriage and to force North Dakota to recognize marriages performed out-of-state as well.

Ohio Carolina State Bullet OHIO: A federal judge ruled in April that Ohio must recognize same-sex marriages performed out-of-state in all cases. In a separate case, a same-sex couple is suing the state after they were denied a family insurance plan under the Affordable Care Act. Meanwhile, a third case in which a judge ruled that the state must recognize same-sex marriages for the purpose of a death certificate is being appealed.

Oklahoma State Bullet OKLAHOMA: A judge ruled Oklahoma's 2004 ban unconstitutional in January, but same-sex marriage remains illegal in the state. The Tenth Circuit Court of Appeals is considering the case, and a similar one in Utah, and heard arguments in both cases in April.

Oregon State Bullet OREGON: A judge ruled in May that the state's 2004 ban on same-sex marriages is unconstitutional. The decision came after Democratic Attorney General Ellen Rosenblum refused to defend the ban in court. Same-sex partnerships were legalized in Oregon in 2007, but couples did not have full marriage rights.

Pennsylvania State Bullet PENNSYLVANIA: A federal judge ruled in May that the state's Defense of Marriage Act was unconstitutional, allowing same-sex marriages to be performed in the state immediately. Days later, Republican Gov. Tom Corbett announced that he would not appeal the decision. Pennsylvania was the last state in the Northeast to legalize same-sex marriage.

While Pennsylvania's Legislature passed a legal ban on same-sex marriage in 1996, it was one of few states that never passed a constitutional ban (which needs to be approved by voters).

South Carolina State Bullet SOUTH CAROLINA: Two women who were married in the District of Columbia are suing for state recognition of their union, as well as an invalidation of South Carolina's 2006 constitutional ban on same-sex marriages. Republican Gov. Nikki Haley, who is up for reelection this year, and the state attorney general have vowed to fight the case.

South Dakota State Bullet SOUTH DAKOTA: Six same-sex couples filed suit in May to overturn the state's 2006 gay-marriage ban. The suit also seeks to force South Dakota to recognize same-sex marriages performed outside the state.

Tennessee State Bullet TENNESSEE: A federal judge ruled in March that the state must recognize the out-of-state marriages of three same-sex couples, while they pursue a case challenging the state's 2006 ban on gay marriages. The state is also pursuing legislation that would allow businesses and religious organizations to elect not to serve same-sex couples on the basis of religious objection.

Texas State Bullet TEXAS: A federal judge ruled that Texas' ban on same-sex marriage is unconstitutional on Feb. 26, but issued a stay to keep the ban in place for now. The stay is in place until the ruling can be reviewed on appeal, which will likely come from the state's Republican Attorney General Greg Abbott, who is also running for governor this year.

Utah State Bullet UTAH: A judge declared the state's 2004 ban on same-sex marriage unconstitutional in December, 2013, allowing weddings to move forward for two weeks before the U.S. Supreme Court issued a stay and put the marriages on hold. The case is being combined with a separate case in Oklahoma, both of which were heard by the 10th Circuit Court of Appeals in April.

Utah is also pursuing legislation that would allow businesses and religious organizations to elect not to serve same-sex couples on the basis of religious objection.

Virginia State Bullet VIRGINIA: A U.S. District Court judge overturned the state's 2006 constitutional ban this month, but stayed the decision while Virginia considers an appeal. Newly elected Attorney General Mark Herring, a Democrat, has said that he will not defend the ban.

West Virginia State Bullet WEST VIRGINIA: Lambda Legal and a state-based gay-rights organization filed suit on behalf of three same-sex couples in October to overturn the state's 2000 law banning same-sex marriage (a proposed amendment to the state constitution banning marriages failed in 2009). A judge denied the state's motion to dismiss the case in late January.

Wisconsin State Bullet WISCONSIN: Wisconsin legalized domestic partnerships in 2009 but retained a constitutional ban on full marriage for same-sex couples. A federal judge overturned that ban in June and rejected Republican Attorney General J.B. Van Hollen's request for a stay. But after some counties issued marriage licenses, the judge clarified that her decision was merely a judgment, not an injunction, and that the marriages would have to be halted. Attorneys have filed an appeal for an injunction.

Wyoming State Bullet WYOMING: Four same-sex couples and the advocacy group Wyoming Equality filed suit in April to overturn the state's 1977 ban on gay marriage.

 

This article was updated on June 25, 2014.

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