The U.S. Court of Appeals for the 10th Circuit has upheld the December 2013 U.S. District Court for Utah ruling in Kitchen v. Herbert striking down that state’s same-sex marriage ban as unconstitutional, in a 2-1 decision written by Judge Carlos Lucero. The Salt Lake Tribune reports, 10th Circuit Court upholds same-sex marriage:
A federal appeals court on Wednesday ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.
By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation 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 immediately stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.
Utah attorney general’s office said Wednesday it will initiate that appeal.
Meanwhile, the state could ask the 10th Circuit Court to re-hear the matter before the full court.
University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”
It is the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.
“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said.
If the state asks the 10th Circuit Court to re-hear the matter before the full court of 12 judges, Rosky said he doubts they will get a different result, and the request may not even be granted.
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The state of Utah now has 90 days to ask the high court to weigh in, Gill said. The only way that counties would be free to immediately start issuing marriage licenses to same-sex couples would be if the state chooses not to petition the high court, he said.
Read the Opinion Here (.pdf).
An update from Equality on Trial, Tenth Circuit Court of Appeals strikes down Utah same-sex marriage ban:
UPDATE: EqualityOnTrial has confirmed that there will be a decision in Bishop v. Smith, the outstanding Tenth Circuit case challenging Oklahoma’s same-sex marriage ban. That decision is still pending, and likely won’t be issued today.
The U.S. District Court for Indiana today struck down that state’s same sex marriage ban in Baskin, et al. v. Bogan, et al. No stay order has been entered yet, allowing same-sex marriages to begin today. The Indianapolis Star reports, Weddings begin as judge throws out same-sex marriage ban:
A federal judge ruled Wednesday that Indiana’s ban on gay marriage is unconstitutional, immediately allowing same-sex couples across the state to receive marriage licenses.
U.S. District Judge Richard Young did not issue a stay on his ruling. However, a spokesman for Attorney General Greg Zoeller, whose office represented the state, said they “will quickly ask for a stay of today’s ruling pending appeal.”
Marion County Clerk Beth White said she is prepared to issue marriage licenses to same-sex couples in her office at the City-County Building in Downtown Indianapolis.
Craig Bowen and Jake Miller were the first couple to get their marriage license and be married in Indianapolis.
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The ruling left other county clerks trying to figure out how to respond. The clerks in Hamilton, Boone, Hendricks, Johnson and Monroe counties went ahead and issued licenses. The Hancock and Shelby clerks decided to hold off.
Shelby County Clerk Vicki Franklin explained she is awaiting direction from state court administration officials and the Indiana Attorney General. “It’s not that we are denying anyone,” she said. “We just need direction on how to proceed.”
The case, Baskin, et al. v. Bogan, et al., revolved around several same-sex Indiana couples who sued the state earlier this year, challenging its ban on gay marriage. One couple, Amy Sandler and Niki Quasney, also asked for immediate recognition of their marriage performed in Massachusetts last year. Quasney is terminally ill.
On May 8, Young ordered Indiana to recognize the couple’s marriage indefinitely, a decision the state then asked a federal appeals court to overturn.
Both sides also asked Young to rule on the broader constitutionality of the state law that says marriage is only between a man and a woman, leading to his decision today.
“The court recognized that there was significant harm to couples when they’re wrongly denied the freedom to marry the one unique person they love,” said Paul Castillo, the attorney for Lambda Legal who argued the Baskin v. Bogan case.
Castillo said he expected the state to appeal the decision.
Zoeller’s office previously vowed to appeal if Young ruled against the state. The office affirmed that position today. In a news release, the office also said it is analyzing the court’s ruling and will communicate with county clerks on proper marriage license procedures they should follow in order “to avoid chaos during the appeal.”
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District judges in several other states have issued stays, which essentially put same-sex marriages on hold pending an appeal. If Young issues a stay at the request of the Attorney General, Tobias said it would likely come later this week or early next week. In the meantime, he said, same-sex marriages are likely to continue in Indiana.
Young’s decision today also resolved three other lawsuits filed earlier this year that challenged the state’s ban on gay marriage. Young combined two of those lawsuits, Fujii et al. v. Pence et al., and Lee et al. v. Pence et al., with his decision in the Baskin v. Bogan case. The last lawsuit, Love et al. v. Pence, was dismissed.
In Indianapolis, Marion County Clerk White said the office will be open until 8 p.m. today to issue licenses.
“I will also conduct short, civil ceremonies on a first-come, first-served basis for a voluntary $50 contribution to the Indiana Youth Group,” White said in a news release.
Read the Order Here (.pdf).
Finally, the Ninth Circuit won’t rehear gay juror discrimination case:
The Ninth Circuit Court of Appeals has denied rehearing en banc in SmithKline Beecham v. Abbott Laboratories, a case involving a gay man who faced discrimination in jury selection.
None of the parties had asked the appeals court to rehear the case, but at least one Ninth Circuit judge called for a vote on the question. The court asked the parties to file briefs, and while one party, AbbVie, a spin-off of Abbott Laboratories, noted that they support rehearing, their support was limited to how to implement the ruling that people can’t be kicked off a jury solely on the basis of their sexual orientation.
Neither party asked the Ninth Circuit to overturn its ruling that discrimination on the basis of sexual orientation generally warrants more stringent judicial scrutiny. The new ruling means that the appeals court will join the Second Circuit in reviewing those claims [under the strict scrutiny standard.]
The Ninth Circuit Court of Appeals will hear arguments in the appeals from Idaho, Latta v. Otter, and from Nevada, Sevcik v. Sandoval, in September. Ninth Circuit Court of Appeals to hear same-sex marriage appeals from Idaho and Nevada in September.