Appeal Fails to Revive Utah’s Gay Marriage Ban

DENVER (CN) - Utah's ban on same-sex marriage is unconstitutional but will remain in place pending a petition to the Supreme Court for relief, the 10th Circuit ruled Wednesday.

Passed in the heavily Mormon state in 2004, Utah's law is the first to go before the 10th Circuit. It is one of many such challenges spurred by the success of United States v. Windsor, a decision by the Supreme Court last year that upended a provision of the Defense of Marriage Act defining marriage as the union of one man and one woman.

The federal appeals court noted that Windsor "left open the question presented to us now in full bloom: May a state of the union constitutionally deny a citizen the benefit or protection of the laws of the state based solely upon the sex of the person that citizen chooses to marry?"

Answering that question with a resounding "no," the 108-page ruling says "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."

"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," Judge Carlos Lucero wrote for a three-judge panel.

Derek Kitchen and Moudi Sbeity joined two lesbian couples in bringing the challenge of Utah's law after they were denied marriage licenses from the Salt Lake City clerk's office because of their sexual orientation.

U.S. District Judge Robert Shelby sided with the couples and overturned the ban in December, saying "all citizens regardless of their sexual identity, have a fundamental right to liberty, and this right protects an individual's ability to marry and the intimate choice a person makes about marriage and family."

Shelby also held that Amendment 3 of the Utah Constitution, which denies homosexual couples the right to marry, violated equal-protection rights because it classifies based on sex and sexual orientation without a rational basis.

Same-sex marriages occurred for 17 days in Utah after Shelby's decision, but the U.S. Supreme Court cut those unions off in January with a stay pending the state's appeal.

Likewise, the 10th Circuit said it would stay its ruling so that the state can petition the justices for relief.

The U.S. government has nevertheless maintained that it will continue to recognize lawful marriages that occurred in Utah, which it says are "eligible for all relevant federal benefits on the same terms as other same-sex marriages."

A report by the Justice Department on remaining obstacles to marriage equality came out just last week.

The Denver Post quoted Shannon Minten, an attorney for the couples, as applauding the decision.

"It's huge," Minten said. "It's historic. Up until now we've had an unbroken wave of decisions by federal court judges for gay marriage rights but a decision by a circuit court of appeals carries more weight."

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