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. —Gov. Gary Herbert
SALT LAKE CITY — A federal judge Friday struck down Utah's voter-approved constitutional amendment — which defines marriage as the union of one man and one woman — finding that it violates rights to due process and equal protection as set forth in the 14th Amendment to the U.S. Constitution.
Within hours, Salt Lake County District Attorney Sim Gill confirmed that, in light of the ruling, he saw no reason to prohibit Salt Lake County Clerk Sherrie Swensen from issuing marriage licenses to same-sex couples, and as many as 120 gay couples descended on the Salt Lake County Clerk's Office to obtain licenses, with many staying to marry on the spot.
The Utah Attorney General's Office issued a statement late Friday night, saying it discussed with U.S. District Judge Robert Shelby "a stay of his decision prohibiting Utah's definition of marriage as between a man and a woman."
"Judge Shelby declined to stay his decision on the court's own accord and would not entertain an oral motion to stay. As a result, the attorney general's office is filing a written motion to stay, which the judge has said he will resolve on an expedited basis," the statement read.
Also Friday, the attorney general's office filed a notice of appeal in U.S. District Court.
"The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case in the 10th Circuit," office spokesman Ryan Bruckman said in a statement. "The attorney general’s office will continue reviewing the ruling in detail until an appeal is filed to support the constitutional amendment passed by the citizens of Utah."
Meanwhile, Utah Gov. Gary Herbert expressed disappointment in Shelby's ruling.
“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,” Herbert said in a statement.
Utah is one of 33 states to have banned same-sex marriage either through its constitution or by statute. In 2004, 66 percent of Utahns approved Amendment 3 and its traditional definition of marriage.
Shelby acknowledged in his ruling that "few questions are as politically charged in the current climate," but he said the plaintiffs in the case were asking a question that depended on the U.S. Constitution.
"The state’s current laws deny its 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," the judge wrote. "Accordingly, the court finds that these laws are unconstitutional."
Bill Duncan, director of the Center for Family and Society at the Sutherland Institute, said he wasn't necessarily surprised by the ruling, based on questions he said Shelby asked at an oral argument hearing on the issue. Still, that doesn't make the ruling "any less disappointing," he said.
"Because the baseline holding is that two-thirds of voters who approved the amendment in 2004 were acting irrationally, and that's hard to swallow," Duncan said. "There's nothing in the U.S. Constitution requiring states to change the legal definition of marriage. The judge elevated his own thinking on a divisive social issue and turned it into a constitutional issue."
He, too, said he was confused as to how an amendment requiring states to treat slaves as full citizens could be interpreted as it was by Shelby.
"That amendment somehow makes Utah's marriage law beyond the pale? That's really a stretch. That's really an overreach," Duncan said. "I think it's an abuse of his authority. It's very clear that this isn't the final say on this issue. It was clear from the beginning that this was going to be decided by a higher court."
Duncan also questioned the judge's timing, calling it a "little disingenuous" given that the judge had said he was hoping to get a ruling written by Jan. 7. And then, "a couple of weeks later, he has a 53-page opinion already prepared."
"Then to have local officials say that's the final answer, we can't wait for one more day to have an appeal to go forward — that doesn't seem the typical behavior," Duncan said. "The judge clearly should have stated in his opinion that the ruling would have been stayed pending appeal to 10th Circuit, and his failure to do so is a little surprising."
Robert George, McCormick Professor of Jurisprudence at Princeton University, argues that the equal protection and due process amendment was a Civil War-era provision that has little to do with same-sex marriage. It was passed to offer recently freed slaves and their descendents protection regardless of race or ethnicity, he said.
"Pro-same-sex marriage groups around the country have been claiming that this 19th-century provision really means that states cannot define marriage the way that they have and every other society in human history have," George said. "The court presumes to claim that the judge's own view of the true nature of marriage was the Constitution's view, but the judge is clearly wrong about that because the Constitution has no view (on same-sex marriage)."
During arguments before the court earlier this month, state attorneys defending Utah's definition of marriage said the case doesn't turn on who is right and who is wrong about what marriage should be, but on who should decide.
"The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States," the judge wrote.
George patently disagreed with Shelby's view.
"The reality is that the (U.S.) Constitution does not embrace one or the other of the competing views of marriage that Americans are divided about right now, and that means that the division should not be imposed on the people by unelected judges," he said. "It should be resolved by the people at the ballot box either directly in referendums or acting through their representatives in the state legislatures."
The state's attorneys contended that the Constitution does not prevent Utahns from defining marriage as between a man and a woman with children's interests at the forefront, and they asked Shelby to throw out the lawsuit. The judge denied their motion for summary judgment Friday.
"The state of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the state’s unsupported fears and speculations are insufficient to justify the state’s refusal to dignify the family relationships of its gay and lesbian citizens," Shelby said in his ruling. "Moreover, the Constitution protects the plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government."
Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed a lawsuit challenging the amendment in March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.
Sbeity said Friday that the news was "very exciting" for him and Kitchen. He said he believes the public's opinion of same-sex marriage has changed and progressed in recent years.
"We’re just thrilled Utah’s taking a positive step forward," Sbeity said. "I hope that everyone is happy for us as much as we are."
In her argument, their attorney Peggy Tomsic called Utah's Amendment 3 the "most draconian deprivation of rights in the United States." Tomsic cited landmark U.S. Supreme Court civil rights cases Brown v. Board of Education, which desegregated schools in the South, and Loving v. Virginia, which invalidated laws banning interracial marriage.
Sbeity said he believes leaving the decision on gay marriage to individual states is not fair because it denies rights "to people who love each other based on gender and sex."
"And that’s all there is to it, in my opinion," he said.
Tomsic issued a statement Friday saying that while she and her clients anticipated that the state of Utah would appeal the decision to the 10th Circuit Court of Appeals, they are confident it will stand as law.
“We cannot capture in words the gratitude and joy plaintiffs feel that Judge Shelby had the courage to declare, as the United States Constitution requires, that same-sex couples, like all other U.S. citizens and Utah residents, are constitutionally entitled to marriage equality in Utah,” Tomsic said.
Cody Craynor, spokesman for The Church of Jesus Christ of Latter-day Saints, said the church "has been consistent in its support of traditional marriage while teaching that all people should be treated with respect."
"This ruling by a district court will work its way through the judicial process," Craynor said. "We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman, and we are hopeful that this view will be validated by a higher court."
At a hearing earlier this month, Shelby said he had his "hands full" with the case as his ruling is believed to not only have ramifications in Utah, but would be used in marriage law cases across the country.
Brett Tolman, a former U.S. attorney for Utah who along with attorney Paul Burke submitted an amicus brief to the Supreme Court on the federal Defense of Marriage Act on behalf of Utah Pride Center, said Shelby’s ruling is “the correct result. It is a proper analysis of the Constitution.”
Tolman and Burke do not represent the three Utah couples who challenged Amendment 3.
“(The ruling) is very strongly worded. It’s definitive. It will make for an interesting decision for those who want to review it in terms of whether or not they appeal or not,” Tolman said, referring to the strong language on disparate treatment.
Numerous state bans on same-sex marriage have been tossed since the Supreme Court overturned DOMA, but the Utah decision may be particularly significant,” Tolman said.
“There are still legal battles to be made, but for Utah to be at the forefront in determining a ban to be unconstitutional is a very big statement when it comes to the rest of the country,” he said.
House Majority Leader Brad Dee, R-Ogden, said he's "grieved" by the judge's decision because it goes against the voter-approved definition of marriage. Dee said he has served in positions as a mayor and LDS Church bishop where he had the authority to marry people and wondered if refusing to marry someone based on his deeply held religious beliefs would be considered discrimination.
Shelby's ruling came the day after the New Mexico Supreme Court determined that the state was constitutionally required to allow same-sex couples to marry and receive the same privileges afforded by civil marriage under law. That ruling made New Mexico the 17th state, including the District of Columbia, to allow gay marriage.
Civil rights organizations, including the American Civil Liberties Union and Human Rights Campaign, praised Shelby's ruling.
“We’re glad that the court has ruled against this discriminatory law,” said John Mejia, legal director of the ACLU of Utah. “This law only serves to deny loving and committed couples the protection and dignity that only comes with marriage. We congratulate the brave couples who brought this challenge and their legal team.”
Human Rights Campaign President Chad Griffin said Shelby "recognized the fundamental equality of gay and lesbian couples guaranteed by the United States Constitution."
"Today, same-sex couples in Utah have renewed hope that they will soon be free to marry, and there is no legal or moral reason for the state to stand in their way,” he said.
To Lynn Wardle, a professor at BYU’s J. Reuben Clark Law School who specializes in family law, Shelby’s ruling was “simply a travesty and a tragedy.”
Wardle predicts there will be “pushback” by backers of traditional marriage and people who voted for Amendment 3.
“People are going to feel that their noses have been rubbed in the dirt," he said. "A process that is supposed to mean something in a democracy has been trivialized and thrown under the bus. The public attention given people who celebrate same-sex marriage is not going to calm the waters.”
Contributing: Dennis Romboy