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10th Circuit Court rules Utah’s same-sex marriage ban unconstitutional

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Posted at 10:10 AM, Jun 25, 2014
and last updated 2014-06-25 23:41:45-04

SALT LAKE CITY -- A federal appeals court has ruled Amendment 3, Utah's ban on same-sex marriage, is unconstitutional.

In a 2-1 decision handed down on Wednesday, the 10th U.S. Circuit Court of Appeals set the stage for the case to decide same-sex marriage nationwide.

"We hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny," the judges wrote.

Read the ruling by the 10th U.S. Circuit Court of Appeals here:

"The United States Constitution, the Fourteenth Amendment, applies to all of us with equal force, no matter what your sexual orientation," said Peggy Tomsic, the lawyer for the couples who sued over Amendment 3.

In its ruling, the 10th U.S. Circuit Court did not allow same-sex marriages to resume. The appeals court granted a stay pending an appeal by the state of Utah to the U.S. Supreme Court.

Amendment 3, which defines marriage as only between a man and a woman and does not recognize anything else, passed in 2004 with 66% of the vote.

Amendment 3 plaintiffs Derek Kitchen, Moudi Sbeity, Laurie Wood and Kody Partridge

Amendment 3 plaintiffs Derek Kitchen, Moudi Sbeity, Laurie Wood and Kody Partridge

Three couples -- Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; Laurie Wood and Kody Partridge -- sued saying it violated their rights to equal protection and due process.

In interviews with FOX 13 on Wednesday, the couples were elated.

"We just got one of the most significant decisions from an appeals court ever!" said Derek Kitchen.

"Historic!" his partner, Moudi Sbeity, interjected.

Kate Call, who married her wife, Karen Archer, in Iowa, said she believes in short time, the 10th Circuit opinion would stand.

"This love deserves to be honored. It is just as sacred as any other love. It's

Amendment 3 plaintiff Kate Call in an interview with FOX 13.

Amendment 3 plaintiff Kate Call in an interview with FOX 13.

beautiful, it's sweet and it's meant to be sanctified in a marriage. I'm so proud," Call told FOX 13.

In a statement, Utah Attorney General Sean Reyes said his office was reviewing the decision and options for appeal, including whether to seek an "en banc" review from the full 10th Circuit Court. But in comments Wednesday afternoon, Governor Gary Herbert said he wanted to take the case to the U.S. Supreme Court.

"I'm disappointed because I do believe that states have the right through the democratic process to make the determination on the definition of marriage," the governor told reporters. "Our people have spoken on that issue. That's part of our law. That being said, the sooner we can get to the Supreme Court, the better I would like it."

Governor Gary Herbert makes a statement on the Amendment 3 ruling by the 10th U.S. Circuit Court of Appeals

Governor Gary Herbert makes a statement on the Amendment 3 ruling by the 10th U.S. Circuit Court of Appeals

The governor again called the original decision to allow same-sex marriage in Utah "chaos" and told FOX 13 he would spend additional money if needed to fight the rulings.

"I don't know what the cost will be to fund that effort, but I expect again, it's money well spent on behalf of people on all sides of this issue," Herbert said. "Everybody wants to know what is the answer to the question."

Tomsic urged the state to drop its appeal.

"If they want to end this chaos, they need to not appeal this decision," she said.

On Dec. 20, 2013, U.S. District Court Judge Robert Shelby overturned Amendment 3, ruling it violated gay and lesbian couples' rights under the U.S. Constitution. The decision was a shock -- the state hadn't even sought a pre-emptive stay -- and gay couples flooded county clerk's offices to seek marriage licenses.

For 17 days, more than 1,200 same-sex couples wed in Utah as the attorney general's office sought an emergency stay to halt the marriages. The U.S. Supreme Court finally intervened, granting a stay pending the appeal through the 10th U.S. Circuit Court of Appeals.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

In arguments before the 10th Circuit Court, Utah said maintaining a traditional definition of marriage was the will of voters and it would preserve a view that "fathers and mothers are important."

Tomsic argued that Amendment 3 discriminates -- treating same-sex couples and their families as "second-class citizens" and demeaning them as humans.

The judges from the 10th Circuit grilled the lawyers in oral arguments about interracial marriage bans in the 1960s, discrimination, state's rights, the will of the people and constitutional rights.

Utah Attorney General Sean Reyes has refused to say his personal views on same-sex marriage, arguing that he has an obligation to defend the law passed by Utah voters.

Call told FOX 13 that she considers it a "lovely irony" if Utah -- where polygamy was once practiced by state founders -- were the case to decide same-sex marriage for the nation.

"It's apropos that we would be the carriers and pioneers of marriage for the entire United States," she said.

Click here to read or download dozens of documents related to the Amendment 3 case.