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Utah plans to appeal appellate court's ruling on same-sex marriage to U.S. Supreme Court

Published: Wednesday, June 25 2014 10:25 a.m. MDT

Penny Kirby, center, and Terri Henry, right, listen during a rally to celebrate the 10th Circuit Court of Appeals' decision that overturned Utah's ban on same-sex marriage at City Creek Park in Salt Lake City on Wednesday, June 25, 2014.

Michelle Tessier, Deseret News

SALT LAKE CITY — Utah plans to appeal to the U.S. Supreme Court Wednesday's 10th Circuit Court of Appeals decision that says the state cannot deny residents the benefit or protection of marriage based on gender.

Wednesday's 2-1 ruling affirmed a lower court decision by U.S. District Judge Robert J. Shelby that overturned Utah's voter-approved Amendment 3, which defines marriage as between a man and a woman.

The Utah Attorney General's Office said it will appeal to the high court but did not rule out the possibility of first asking the full 10th Circuit court to review the case.

Utah Gov. Gary Herbert said the appellate court's decision "needs to be appealed because we can't get finality and final resolution unless the Supreme Court hears the case and makes a decision."

Halting the state's defense of the voter-approved Amendment 3 to Utah's Constitution, passed by 66 percent of voters in 2004, would be "like stopping a game in the middle of the contest," he said.

"This was a 2-1 decision, so at least a judge agrees with the state's decision. And you can't stop in the middle. You've got to play until the final buzzer," Herbert said following the release of the opinion.

Plaintiffs' attorney Peggy Tomsic said she, the three same-sex couples who brought the case and other counsel shed tears of joy over Wednesday's ruling.

"This decision is an absolute victory for fairness and equality for all families in Utah, in every state in the 10th Circuit and every state in this great nation of the United States," she said.

"From a human standpoint, the 10th Circuit, as we all have believed from day one, validated the United States Constitution, that the 14th Amendment applies to all of us with equal force, no matter what your sexual orientation, and it is the first federal appellate court to ever hold that same-sex couples have a constitutional due process right to marry the person whom they choose no matter their gender."

But the ruling also brought a defense of state rights. Tenth Circuit Court of Appeals Judge Paul J. Kelly Jr. dissented from Judge Carlos Lucero and Judge Jerome Holmes in the ruling, noting:

"We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment," Kelly wrote in a 21-page dissent.

"If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head," he wrote. "Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this is inevitable."

The issues

Plaintiffs Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Amendment 3 defining marriage as between a man and a woman in federal court in March 2013. Archer and Call joined the suit to have their Iowa marriage recognized in Utah.

Shelby overturned the Utah law in December, ruling that it violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. The state appealed Shelby's decision and obtained a stay from the U.S. Supreme Court, but not before about 1,300 same-sex couples were married in Utah over a 17-day period.

The stay remains in place following Wednesday's ruling.

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