DENVER (AP) — The
first ruling by a federal appeals court that states cannot prevent gay
couples from marrying makes it more likely the Supreme Court will
ultimately have to make a decision it has so far avoided — do states have
the ability to prohibit same-sex marriage?
The court danced
around that question precisely one year ago when it issued a pair of
rulings on gay marriage. At the time, Justices Ruth Bader Ginsburg and
Stephen Breyer warned about the high court trying to enforce societal
changes through judicial fiat, with Ginsburg citing the lingering abortion
rights battle ever since the court legalized the practice in Roe v. Wade.
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 federal Defense of Marriage Act, finding same-sex
marriages from states where the practice was legal must be recognized.
triggered an avalanche of 17 straight court decisions upholding the rights
of gays to marry, including Wednesday's 2-1 ruling from the 10th Circuit
Court of Appeals in Denver, 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.
"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.
"I don't know if
the Supreme Court is going to wait for a circuit split as long as it
usually does," said Nancy Leong, a law professor at the University of
Denver, noting that the recent judicial unanimity on the issue could make
that a long wait. Meanwhile, she said, countless gay couples are eager to
marry and less and less willing for the slow pace of the courts.
That was on
display in Colorado on Wednesday afternoon, 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.
ruling stressed the urgency of overturning gay marriage bans rather than
waiting for new laws to be written by elected officials. "Plaintiffs in
this case have convinced us that Amendment 3 violates their fundamental
right to marry," Judge Carlos Lucero wrote for the majority. "We may not
deny them relief based on a mere preference that their arguments be
But Judge Paul
Kelly argued in his dissent that the 10th Circuit overstepped its
authority and that states should be able to decide who can marry.
"We should resist
the temptation to become philosopher-kings, imposing our views under the
guise of the 14th Amendment," Kelly wrote.
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 10th Circuit ruling is far greater because
it is one level higher on the legal food chain.
In 2012, an
appellate court struck down California's gay marriage ban but said it was
only ruling on that law, not the broader constitutional questions. There
were no such caveats in Wednesday's 65-page decision.
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."
president of the Family Research Council, issued a statement saying judges
were treading on dangerous ground by moving so fast.
"The courts, for
all their power, can't overturn natural law. What they can do is incite a
movement of indignant Americans, who are tired of seeing the foundations
of a free and just society destroyed by a handful of black-robed tyrants,"