While everyone's eyes were on the Supreme Court, and the last few days of its term, the Tenth Circuit just dropped an opinion that is just as important, if not more so, than the High Court's slate of cases: it just ruled that Utah's ban on same-sex marriages is unconstitutional.
The court's ruling is the first to come from one of our nation's appellate courts*, and should impact the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
First of Its Kind
While more than a dozen district courts have all unanimously held against gay marriage bans, this is the first appellate court to do so. The panel, by a 2-1 vote, held that Utah's voter-approved amendment defining marriage as between a man and a woman was unconstitutional.
The language, by the way, is familiar: "[Utah's] gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason."
A very interesting note: the panel applied strict scrutiny here. In Windsor, the Supreme Court declined to set an applicable level of scrutiny for sexual preference-based discrimination. Since then, courts have generally held that some form of heightened scrutiny applies, though at various levels.
Judge Paul Kelly, in a lengthy dissent, warned that "[w]e should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment."
He would have applied the rational basis test in lieu of any form of heightened scrutiny, and upheld the law as a means of promoting procreation and child-rearing.
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More at the Tenth
Obviously, the state of Utah is going to ask for an en banc rehearing, and due to the landmark nature of the case, the unsettled questions of law, etc., such a rehearing is likely.
A second case, addressing Oklahoma's same-sex marriage ban, is now all-but-decided against the state. Since the cases were argued at the same time to the same panel, the votes are likely to go the same way.
*While the Ninth Circuit was actually the very first to address same-sex marriage bans in Hollingsworth v. Perry, the Supreme Court's opinion on standing vacated the Ninth Circuit's opinion. So, legally, the Tenth is the first, and is definitely the first since the High Court's landmark Windsor and Perry opinions.
- Herbert v. Kitchen (Tenth Circuit Court of Appeals)
- In Historic Ruling, Tenth Circuit Declares Marriage Equality Bans Unconstitutional (HRC)
- 3 Issues to Watch in the 10th Circuit: SS Marriage, Abortion, Weed (FindLaw's Tenth Circuit Blog)