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, gay-rights advocates are gaining ground over their opponents.

National Journal
Sarah Mimms and Brian McGill
June 25, 2014, 11:45 a.m.

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.

Roll over a state to find out more in­form­a­tion. For a stat­ic im­age of this map, click here.

This art­icle was up­dated on June 25, 2014.

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