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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

"Although the court’s 2-1 split decision does not favor the state, we are pleased that the ruling has been issued and takes us one step closer to reaching certainty and finality for all Utahns on such an important issue with a decision from the highest court," a statement from the Utah Attorney General's Office said.

The appellate court, in a 65-page opinion, held that "the 14th Amendment protects the fundamental right to marry, establish a family, raise children and enjoy full protection of a state's marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely on the sex of the persons in the marriage union."

According to the majority opinion: "Plaintiffs seek to enter into legally recognized marriages, with all the constitutional rights and responsibilities enshrined in Utah law. They desire not to redefine the institution but to participate in it."

The court found the state's assertion that same-sex couples are excluded from marriage by definition is "wholly circular."

"Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages," according to the opinion written by Lucero and joined by Holmes.

The appeals courts emphasized, as Shelby did in his ruling, that the decision relates solely to civil marriage.

"Plaintiffs must be accorded the same legal status as presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit," the judges wrote.

History-making case

The Utah case marks the first time that a federal appellate court has struck down a same-sex marriage ban. It is among several cases nationwide at that stage, and it is assumed that one of those will eventually make its way to the U.S. Supreme Court.

In his dissent, Kelly acknowledged that same-sex marriage is a highly emotional and important question of public policy, “but not a difficult question of constitutional law at least when it comes to the states’ right to enact laws preserving or altering the traditional composition of marriage.”

The Constitution is silent on the regulation of marriage, that power is reserved to the states, albeit consistent with federal constitutional guarantees, he wrote.

"To the extent that there is no right to same-gender marriage emanating from the 14th Amendment, a state should not be compelled to recognize it," according to Kelly.

“And while the court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender," he wrote. "Indeed, the court has been less solicitous of plural marriages or polygamy."

If the states don’t have the right to limit marriages, Kelly questioned whether Utah can prohibit bigamy — a “proposition” that has been “soundly rejected.” Likewise, “Utah would be hard-pressed to prohibit marriages for minors under 15 and impose conditions for other minors,” he wrote.

Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, said he was “heartened" by Kelly's dissent.

"Kelly’s opinion is a model of judicial restraint. I’m afraid that Lucero’s opinion was a model of the opposite, of judicial activism and a willful overreaching of judicial authority."

The good news, he said, was that the panel stayed its ruling "so there won’t be any pitching headlong over a cliff into same-sex marriages being performed today or tomorrow in Utah, that’s at least forestalled. That was responsible. Some of lower courts have declined to stay their rulings."

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