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10th Circuit ruling pushes gay marriage closer to Supreme Court

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The first ruling by a federal appeals court that states cannot prevent gay couples from marrying makes it more likely the Supreme Court of the United States will ultimately have to make a decision it has so far avoided — do states have the ability to prohibit same-sex marriage?

The court danced around that question precisely one year ago when it issued a pair of rulings on gay marriage. At the time, Justices Ruth Bader Ginsburg and Stephen Breyer warned about the high court trying to enforce societal changes through judicial fiat, with Ginsburg citing the lingering abortion rights battle ever since the court legalized the practice in Roe v. Wade.

The high court's caution was evident in its rulings: It upheld a decision striking down California's gay marriage ban but relied on technicalities rather than finding a national right for same sex couples to marry. Then it struck down parts of the federal Defense of Marriage Act, finding same-sex marriages from states where the practice was legal must be recognized.

That decision triggered an avalanche of 17 straight court decisions upholding the rights of gays to marry, including Wednesday's 2-1 ruling from the 10th Circuit Court of Appeals in Denver, the highest court to weigh in since the Supreme Court. Utah, whose gay marriage ban was struck down in the decision, is considering an appeal to the Supreme Court.

"This tees it up for possible Supreme Court review," said William Eskridge, a law professor at Yale University. "When a federal appeals court strikes down a major state law, there is a lot more pressure for the justices to take that."

There is no guarantee that the Utah case will be the one that makes it to the top court. Five other appellate courts are considering similar cases, and any of those could be the one taken. The soonest a case could be decided is 2015, but often the Supreme Court waits for a split in appellate courts before considering an issue.

"I don't know if the Supreme Court is going to wait for a circuit split as long as it usually does," said Nancy Leong, a law professor at the University of Denver, noting that the recent judicial unanimity on the issue could make that a long wait. Meanwhile, she said, countless gay couples are eager to marry and less and less willing for the slow pace of the courts.

That was on display in Colorado on Wednesday afternoon, when the county clerk in the liberal city of Boulder announced she would issue same-sex marriage licenses even though the 10th Circuit — which along with Colorado and Utah includes, Kansas, New Mexico, Oklahoma and Wyoming — stayed its decision pending appeal. The state's attorney general declared the licenses invalid because Colorado's gay marriage prohibition is still the law, but Clerk and Recorder Hillary Hall said she would continue to issue them until stopped by a court.

Wednesday's ruling stressed the urgency of overturning gay marriage bans rather than waiting for new laws to be written by elected officials. "Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry," Judge Carlos Lucero wrote for the majority. "We may not deny them relief based on a mere preference that their arguments be settled elsewhere."

But Judge Paul Kelly argued in his dissent that the 10th Circuit overstepped its authority and that states should be able to decide who can marry.

"We should resist the temptation to become philosopher-kings, imposing our views under the guise of the 14th Amendment," Kelly wrote.

The ruling came down just minutes after a federal judge threw out that Indiana's same-sex marriage ban in a decision that immediately allows gay couples to wed. But the legal significance of the 10th Circuit ruling is far greater because it is one level higher on the legal food chain.

In 2012, an appellate court struck down California's gay marriage ban but said it was only ruling on that law, not the broader constitutional questions. There were no such caveats in Wednesday's 65-page decision.

Evan Wolfson, president of Freedom to Marry, said Utah's legal victory was sweeter because of where it originated — a conservative, deeply religious state in the heart of the mountain West.

"What is so powerful here is that we have the first federal appellate court and ... it's a case coming out of Utah affirming in the strongest, clearest, boldest terms that the Constitution guarantees the freedom to marry and equal protection for all Americans and all means all, including gay couples," he said.

The Church of Jesus Christ of Latter-day Saints, based in Salt Lake City, said it maintains marriage should be between a man and a woman, but believes "all people should be treated with respect."

Tony Perkins, president of the Family Research Council, issued a statement saying judges were treading on dangerous ground by moving so fast.

"The courts, for all their power, can't overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants," Perkins said.



 




 

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  1. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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