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Utah looking for ways to overcome 10th Circuit loss

Published: Wednesday, June 25 2014 6:00 p.m. MDT

Plaintiffs Moudi Sbeity and Derek Kitchen attend a press conference regarding a federal appeals court decision on same-sex marriage in Salt Lake City Wednesday, June 25, 2014. The 10th Circuit Court upheld a federal district court ruling that made same-sex marriage legal in Utah.

Jeffrey D. Allred, Deseret News

SALT LAKE CITY — A federal appeals court shot down Utah's arguments against same-sex marriage, but the dissenting opinion might give the state something to pursue going forward.

Bill Duncan, a lawyer who heads the Sutherland Institute's Center for Family and Society, said he believes the 10th Circuit Court of Appeals' split decision Wednesday opens some new opportunities for the state as it appeals to the U.S. Supreme Court.

Still, as University of Utah law professor Cliff Rosky points out, 10th Circuit Judge Paul J. Kelly is the only judge so far in 19 cases across the country to conclude that state laws defining marriage as between a man and a woman are constitutional.

"That's something new. They have one judge," said Rosky, who supports gay marriage.

A three-judge panel found marriage is a fundamental right under the 14th Amendment, and ruled that access to marriage cannot be denied to same-sex couples. It was the first federal appeals court to rule on the issue.

"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," Judge Carlos F. Lucero wrote for the two-judge majority. He was joined by Judge Jerome A. Holmes.

The court stayed its ruling in anticipation of an appeal to the Supreme Court. The state has 90 days to petition the court to hear its case.

In his dissent, Kelly wrote that the Constitution is silent on the regulation of marriage and that power is reserved to the states, albeit consistent with federal constitutional guarantees.

Duncan pointed out that the court, more explicitly than U.S. District Judge Robert J. Shelby did in striking down Utah's gay marriage ban, stated there was no animus or hostility on the part of the state or voters in approving the law.

"Courts do not sit in judgment of the hearts and minds of the citizenry," according to the majority opinion. "Our conclusion that plaintiffs possess a fundamental right to marry and to have their marriages recognized in no way impugns the integrity or the good-faith beliefs of those who supported Amendment 3."

"Presumably, the state won't need to spend as much time rebutting the idea that voters were acting out of an irrational motive of hatred," Duncan said.

History of marriage

He also said the state would be able to argue that the 10th Circuit is creating a new fundamental right that is not based on the history and tradition of the nation, which is what the Supreme Court requires when a new right is recognized.

The 10th Circuit opinion says, "To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage."

Duncan also said he found persuasive Kelly's argument that decisions about regulating marriage should be left to the states and voters. If the Constitution doesn't say anything about it, that means it's a state issue, he said. Two-thirds of Utahns approved Amendment 3 in 2004.

"Depending on how much the court feels bound by that reasoning, they could very well rule in favor of the state on that ground," he said.

10th Circuit judges Lucero and Holmes, though, wrote that protection and exercise of fundamental rights are not matters for opinion polls or the ballot box.

In written and oral arguments, the state contended that Amendment 3 ensures reproduction and foster child-centric marriages where children are raised by their biological mothers and fathers.

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