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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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