Federal Judge Strikes Utah Ban

Utah Couples Begin To Marry, No Stay Issued

By Lisa Keen

{Keen News Service www.keennewsservice.com}

A federal judge in Utah issued a decision Dec. 20 striking down that state's ban on same-sex marriage, and same-sex couples immediately sought marriage licenses and began getting married.

Obama appointee Judge Robert Shelby issued a 53-page decision, in Kitchen v. Herbert, saying the state's current definition of marriage is not permissible under the U.S. Constitution.

Noting that a court interferes with a law adopted by voters "only under exceptional circumstances," Shelby said, "Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law."

"The State's current laws deny its gay and lesbian citizens their fundamental right to marry," wrote Shelby, "and, in so doing, demean the dignity of these same-sex couples for no rational reason."

Shelby's order immediately enjoined the state from enforcing its ban, but Republican Gov. Gary Herbert's administration vowed to seek an emergency stay of the decision from the 10th Circuit U.S. Court of Appeals.

In a brief statement Herbert said only, "I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah."

But Deseret News of Salt Lake City reported that between 115 and 120 marriage licenses were issued to same-sex couples Dec. 20 in Salt Lake County. Salt Lake City Mayor Ralph Becker performed some of the ceremonies.

News of the ruling represented another surge of momentum in the direction of marriage equality in the United States, coming just one day after the New Mexico Supreme Court said that state could no longer interpret its marriage laws to exclude same-sex couples. That decision made New Mexico the 17th state in the country, plus the District of Columbia, to provide marriage equality and putting more than one-third of states and one-third of the nation's population in jurisdictions that treat same-sex couples the same as straight couples.

Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision "a huge win."

"This is the first decision since the Supreme Court's decision striking down the federal Defense of Marriage Act to overturn a state marriage ban under the federal constitution," said Minter. "To have such a historic ruling take place in Utah speaks volumes about our country's trajectory from discrimination to acceptance and support for same-sex couples and their families. We owe an enormous debt of gratitude to the brave couples who brought this case, as well as to the superb attorney, Peggy Tomsic, who represented them."

Jon Davidson, legal director for Lambda Legal, noted that, "since last November, we have gone from six states and D.C. where same-sex couples can marry to now (including Utah for at least the moment, and Illinois, where couples have a medical need to marry now rather than June can marry), 18 states plus D.C. I never would have predicted that we would see such incredibly rapid change."

A New Jersey Superior Court ruled September 27 that the decision in the DOMA case, U.S. v. Windsor, required New Jersey to allow same-sex couples to marry in order to have access to the same federal benefits as straight married couples. That ruling struck down New Jersey's ban, and after the state supreme court refused to grant an emergency stay of the decision, Republican Governor Chris Christie dropped his appeal of the decision, making New Jersey the 14th state to provide marriage equality. New Mexico did not have a ban, but its supreme court cited the Windsor decision in ruling that the state had to treat same-sex couples equally under its marriage laws.

Utah was one of the first states to pass explicit statutory and constitutional bans on same-sex couples marrying. The state legislature first created a ban through statute in 1977. In 2004, it passed a statute barring the state from recognizing the marriage of a same-sex couple licensed elsewhere, and it passed a resolution asking voters to approve a constitutional amendment defining marriage in Utah as being only between one man and one woman. The voters approved the constitutional amendment in November 2004.

Judge Shelby, in discussing Windsor, noted that the Supreme Court did not decide whether states could ban same-sex couples from marrying. But, citing the landmark Loving v. Virginia decision, in which the Supreme Court struck down laws prohibiting interracial couples from marrying, Shelby said, "the Supreme Court has considered analogous questions that involve the tension between these two values in other cases. ... In these cases, the Court has held that the Fourteenth Amendment requires that individual rights take precedence over states' rights where these two interests are in conflict."

"Given the importance of marriage as a fundamental right and its relation to an individual's rights to liberty, privacy, and association," wrote Shelby, "the Supreme Court has not hesitated to invalidate state laws pertaining to marriage whenever such a law intrudes on an individual's protected realm of liberty."

(c) 2013 Keen News Service. All rights reserved.


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