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10th Circuit decision could impact Utah marriage recognition case

Published: Thursday, June 26 2014 6:20 p.m. MDT

People 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) People 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 — Attorneys for four same-sex couples in Utah seeking recognition of their marriages said the 10th Circuit Court's ruling on Amendment 3 gives them "hope" for a successful outcome in their case.

"It definitely does have a lot of very helpful language and does give us a lot of hope that Evans will be met with success based on the outcome and decision in Kitchen," said John Mejia, legal director of the ACLU of Utah.

A three-member panel of the 10th Circuit Court of Appeals on Wednesday upheld a lower court ruling that struck down the state's ban on same-sex marriage under the voter-approved Amendment 3 to the Utah Constitution. It was the first time an appellate court has ruled on the issue.

The court ruled in that case, Kitchen v. Herbert, that voter-approved Amendment 3, which defined marriage in Utah as between a man and a woman, violated same-sex couples' equal protection and due process rights.

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) 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)

Supreme Court blogger Lyle Denniston said he believes the 10th Circuit Court of Appeals will act quickly on the marriage recognition case, Evans v. Utah, filed by four same-sex couples who were married between Dec. 20 and Jan 6, the period between U.S. District Judge Robert J. Shelby's ruling that struck down Amendment 3 and a stay of the ruling issued by the U.S. Supreme Court.

The state declined to recognize the marriages, and the couples decided to sue. In May, U.S. District Judge Dale A. Kimball ordered Utah to recognize the marriages and grant benefits to about 1,300 couples married during that window. The state has appealed the decision to the 10th Circuit Court of Appeals, which issued a stay in the matter. The case has not yet been assigned to a panel of appellate judges.

"I think in view on what they did on the merits yesterday, there is no chance that recognition of those marriages is forbidden because half of the ruling yesterday was on recognition rather than on initial right to marry," Denniston, a journalist who has covered the Supreme Court for 56 years, said Thursday.

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) 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)

Wednesday's ruling was a 2-1 decision. Tenth Circuit Judge Paul Kelly disagreed with his colleagues on marriage recognition. In his dissent, Kelly wrote that a state should not be compelled to recognize same-sex marriage "to the extent there is no right to same-gender marriage emanating from the 14th Amendment."

The Utah Attorney General's Office declined to speculate about what Wednesday's decision means regarding the Evans case, said Missy Larsen, spokeswoman for the Utah Attorney General's Office.

Mejia also would not speculate on how the 10th Circuit will handle the marriage recognition case but said, "I do think Kitchen has a lot of very encouraging language for Evans, but you can never guarantee an outcome."

The court's opinion in the Kitchen case states: "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."

Jimmy Lee, right, and Bonnie O'Brien laugh 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) Jimmy Lee, right, and Bonnie O'Brien laugh 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)

Denniston said the court essentially said that "if you’re already married, you have you have a right of recognition. So that’s all that’s at issue in this window of opportunity series of marriages" in the Evans case.

"I would expect very soon we would get another order or another opinion from the 10th Circuit resolving that piece finally," Denniston said.

Email: marjorie@deseretnews.com

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