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Michelle Tessier, Deseret News
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Utah plans to appeal appellate court's ruling on same-sex marriage to U.S. Supreme Court

SALT LAKE CITY — Utah plans to appeal to the U.S. Supreme Court Wednesday's 10th Circuit Court of Appeals decision that says the state cannot deny residents the benefit or protection of marriage based on gender.

Wednesday's 2-1 ruling affirmed a lower court decision by U.S. District Judge Robert J. Shelby that overturned Utah's voter-approved Amendment 3, which defines marriage as between a man and a woman.

The Utah Attorney General's Office said it will appeal to the high court but did not rule out the possibility of first asking the full 10th Circuit court to review the case.

Utah Gov. Gary Herbert said the appellate court's decision "needs to be appealed because we can't get finality and final resolution unless the Supreme Court hears the case and makes a decision."

Halting the state's defense of the voter-approved Amendment 3 to Utah's Constitution, passed by 66 percent of voters in 2004, would be "like stopping a game in the middle of the contest," he said.

"This was a 2-1 decision, so at least a judge agrees with the state's decision. And you can't stop in the middle. You've got to play until the final buzzer," Herbert said following the release of the opinion.

Plaintiffs' attorney Peggy Tomsic said she, the three same-sex couples who brought the case and other counsel shed tears of joy over Wednesday's ruling.

"This decision is an absolute victory for fairness and equality for all families in Utah, in every state in the 10th Circuit and every state in this great nation of the United States," she said.

"From a human standpoint, the 10th Circuit, as we all have believed from day one, validated the United States Constitution, that the 14th Amendment applies to all of us with equal force, no matter what your sexual orientation, and it is the first federal appellate court to ever hold that same-sex couples have a constitutional due process right to marry the person whom they choose no matter their gender."

But the ruling also brought a defense of state rights. Tenth Circuit Court of Appeals Judge Paul J. Kelly Jr. dissented from Judge Carlos Lucero and Judge Jerome Holmes in the ruling, noting:

"We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment," Kelly wrote in a 21-page dissent.

"If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head," he wrote. "Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this is inevitable."

The issues

Plaintiffs Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Amendment 3 defining marriage as between a man and a woman in federal court in March 2013. Archer and Call joined the suit to have their Iowa marriage recognized in Utah.

Shelby overturned the Utah law in December, ruling that it violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. The state appealed Shelby's decision and obtained a stay from the U.S. Supreme Court, but not before about 1,300 same-sex couples were married in Utah over a 17-day period.

The stay remains in place following Wednesday's ruling.

"Although the court’s 2-1 split decision does not favor the state, we are pleased that the ruling has been issued and takes us one step closer to reaching certainty and finality for all Utahns on such an important issue with a decision from the highest court," a statement from the Utah Attorney General's Office said.

The appellate court, in a 65-page opinion, held that "the 14th Amendment protects the fundamental right to marry, establish a family, raise children and enjoy 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 on the sex of the persons in the marriage union."

According to the majority opinion: "Plaintiffs seek to enter into legally recognized marriages, with all the constitutional rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it."

The court found the state's assertion that same-sex couples are excluded from marriage by definition is "wholly circular."

"Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages," according to the opinion written by Lucero and joined by Holmes.

The appeals courts emphasized, as Shelby did in his ruling, that the decision relates solely to civil marriage.

"Plaintiffs must be accorded the same legal status as presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit," the judges wrote.

History-making case

The Utah case marks the first time that a federal appellate court has struck down a same-sex marriage ban. It is among several cases nationwide at that stage, and it is assumed that one of those will eventually make its way to the U.S. Supreme Court.

In his dissent, Kelly acknowledged that same-sex marriage is a highly emotional and important question of public policy, “but not a difficult question of constitutional law at least when it comes to the states’ right to enact laws preserving or altering the traditional composition of marriage.”

The Constitution is silent on the regulation of marriage, that power is reserved to the states, albeit consistent with federal constitutional guarantees, he wrote.

"To the extent that there is no right to same-gender marriage emanating from the 14th Amendment, a state should not be compelled to recognize it," according to Kelly.

“And while the court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender," he wrote. "Indeed, the court has been less solicitous of plural marriages or polygamy."

If the states don’t have the right to limit marriages, Kelly questioned whether Utah can prohibit bigamy — a “proposition” that has been “soundly rejected.” Likewise, “Utah would be hard-pressed to prohibit marriages for minors under 15 and impose conditions for other minors,” he wrote.

Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, said he was “heartened" by Kelly's dissent.

"Kelly’s opinion is a model of judicial restraint. I’m afraid that Lucero’s opinion was a model of the opposite, of judicial activism and a willful overreaching of judicial authority."

The good news, he said, was that the panel stayed its ruling "so there won’t be any pitching headlong over a cliff into same-sex marriages being performed today or tomorrow in Utah, that’s at least forestalled. That was responsible. Some of lower courts have declined to stay their rulings."

Tomsic, meanwhile, said she gave the 10th Circuit "enormous respect for not only intellectually being honest, but writing a very deep and analytical decision supporting their finding that Judge Shelby was right, that Amendment 3 and these marriage discrimination laws violate due process and equal protection."

Derek Kitchen, one of the plaintiffs, said the court system treated same-sex couples with dignity.

"It feels wonderful to be among one of the many, many same-sex couples across the country that are being respected and they’re offered dignity by the court system. This is just emblematic of the United States judicial process and it's an honor and I’m so humbled and proud to be here," Kitchen said at a press conference Wednesday afternoon.

Stay impacts six states

Utah is one of 33 states to have banned same-sex marriage either through its constitution or by statute. In 2004, Utahns approved the amendment to the state's Constitution and its traditional definition of marriage.

Wednesday's ruling is the first federal appellate court decision since the U.S. Supreme Court last summer struck down a key provision of the Defense of Marriage Act in U.S. v. Windsor.

If not for the stay, the ruling would become law in the six states of the 10th Circuit's jurisdiction — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. New Mexico's Supreme Court has already legalized gay marriage in that state.

Reaction to the decision was swift and divided.

The Church of Jesus Christ of Latter-day Saints, in a statement posted on its website, said: "The Church has been consistent in its support of marriage between a man and a woman and teaches that all people should be treated with respect. In anticipation that the case will be brought before the U.S. Supreme Court, it is our hope that the nation’s highest court will uphold traditional marriage."

Meanwhile, Chad Griffin, president of the Human Rights Campaign, said the decision affirms that "the U.S. Constitution guarantees the basic civil rights of all Americans, not just some.”

“Utah’s ban on marriage equality does nothing to strengthen or protect any marriage. Instead, it singles out thousands of loving Utah families for unfair treatment simply because of who they are. Our Constitution does not allow for such blatant discrimination," Griffin said.

But Robert George, Princeton University professor of politics who served as a presidential appointee to the U.S. Commission on Civil Rights and a judicial fellow at the Supreme Court, described the appellate decision as “a crime with two victims.”

“The first victim is the institution of marriage itself, which is redefined to remove its conjugal nature and to replace it with a counterfeit conception of marriage as a form of sexual-romantic companionship or domestic partnership. The second victim is the principle of self-government," said George, who is a past chairman of the National Organization for Marriage, which advocates for traditional marriage, and is a member of the Deseret News Editorial Advisory Board.

Appeal will follow

The decision by Utah Attorney General Sean Reyes to seek an appeal is "vitally important not only to the institution of marriage itself, which has served mankind so well for so long, but to the institutions of self-government," George said.

Sen. Orrin Hatch, R-Utah, said he was not surprised by the ruling, but he disagreed with the court's reasoning and hopes the Supreme Court will allow states to define marriage.

"Although I oppose discrimination based on sexual orientation, I have always believed that marriage is a sacred union between one man and one woman," Hatch said. "In my view, the U.S. Constitution does not dictate a particular definition of marriage, so I believe such judgments are properly left to the citizens of each state."

The Sutherland Institute expressed disappointment at the decision for overriding the decision of Utah voters “to preserve marriage as society’s way of preserving children’s opportunity to be reared by a mother and a father."

"We’ve long known that this issue will have to be resolved by the U.S. Supreme Court," the Utah-based conservative think tank said in a statement. "We’re grateful that Utah will have the opportunity to make its case to the top court that Utah voters deserve self-determination to decide a matter crucial to the state and its citizens.

"Any appeal at the U.S. Supreme Court is the main event and may decide the future of marriage for decades. Defenders of marriage must be prepared, and Sutherland Institute has laid the groundwork ensuring that top legal minds have compiled every constructive and effective argument to give our side the best chance of winning."

John Mejia, legal director for the American Civil Liberties Union of Utah, said the ruling could help the pending lawsuit in Utah's federal court seeking recognition of the marriages of same-sex couples who were wed before the Supreme Court issued a stay.

“Everything is in flux, but I think the overall message today is marriage equality is marching on,” Mejia said. He said he was disappointed that Wednesday’s ruling in the Amendment 3 case left the stay in place.

Charles Stormont, Democratic candidate for Utah attorney general, called Amendment 3 and other bans on same-sex marriage "illegal and unconstitutional" and said he would not defend Utah's constitutional amendment if elected.

"I would immediately drop that case. It is a tremendous waste of taxpayer resources," Stormont said at an event to kick off his campaign. "It is destroying families and that has to stop. We have to stand up for people's rights. We should not be fighting to take them away."

Contributing: Benjamin Wood, Lisa Riley Roche, Dennis Romboy

Email: marjorie@deseretnews.com, Twitter: DNewsPolitics