In it, but not of it. TPM DC
"We hold 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," Judge Carlos F. Lucero wrote in the decision for a three-judge panel. "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."
The ruling affirms a decision by U.S. District Judge Robert Shelby in December that Utah's ban on same-sex marriage, adopted by the voters in 2004 as a constitutional amendment, violated the U.S. Constitution. The state of Utah had appealed the ruling.
The 10th Circuit ruling invoked the Supreme Court's landmark 2013 decision to strike down a portion of the Defense of Marriage Act which prohibited federal recognition of legal same-sex marriage. While Lucero acknowledged that the issues are "not identical" he said the appeals court's reasoning was derived from the principles that the Supreme Court majority put forth in the DOMA ruling, U.S. v. Windsor, in which the justices refrained from taking an explicit position on whether state bans on same-sex marriage were constitutional.
"Rather than relying on federalism principles, the Court framed the question
presented as whether the 'injury and indignity' caused by DOMA 'is a deprivation of an essential part of the liberty protected by the Fifth Amendment.' ... And the Court answered that question in the affirmative," Lucero wrote.
Roberta Kaplan, the lawyer who successfully argued DOMA before the Supreme Court, was in San Francisco to be a marshal at the gay pride parade when she heard the news.
"My immediate reaction is, holy cow! It's amazing," Kaplan told TPM by phone. "It's even more appropriate and joyous that it's happening a day before the Windsor anniversary which is tomorrow. It's truly a wonderful anniversary present for Edie Windsor and me and the entire Windsor team."
The DOMA ruling set off a chain reaction in which multiple district courts across the country proceeded to strike down state laws against same-sex marriage.
"In light of Windsor, we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married," Lucero wrote for the 10th Circuit.
Of the three judges on the panel, Lucero is a Bill Clinton appointee, Paul Joseph Kelly is a George H. W. Bush appointee and Jerome Holmes is a George W. Bush appointee. A 10th Circuit court ruling sets precedent across the other five states it covers: Oklahoma, Colorado, Kansas, New Mexico and Wyoming.
Kaplan said she had hoped her case would lead to broader recognition of same-sex marriage rights -- someday. "We thought that if we could focus on equal protection and show that gay couples are like any other couple then we'd achieve the consequences you're seeing today," she said. "I just didn't think it'd happen so fast."
This article has been updated. The ruling is available below.