In a 2-1 decision today, a
federal appeals court in Denver upheld a ruling from 2013 that
Utah’s ban on same-sex marriage recognition is
unconstitutional.
If Utah chooses to appeal this latest ruling (which the judge
has put on hold for the state to consider its options), it will be
up to the Supreme Court to decide if it wants to hear it.
In the majority decision, Judge Carlos Lucero writes, “We hold
that the Fourteenth Amendment protects the fundamental right to
marry, establish a family, raise children, and enjoy the 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 upon the sex of the persons
in the marriage union.” Read the decision here.
In the dissent, Judge Paul J. Kelly
said the court was overstepping its authority: We should resist
the temptation to become philosopher-kings, imposing our views
under the guise of the Fourteenth Amendment.”
Assuming Utah continues its appeal, the Supreme Court would have
to decide to take the case up and consider whether setting a legal
precedent that gay marriage recognition is or is not a right. If
they decline to take up the case, technically they are avoiding the
precedent, but given that federal judges have been striking down
gay marriage bans wherever they’ve been challenged (less than an
hour before this announcement,
a judge struck down Indiana’s ban, and the state has already
begun handing out marriage licenses), gay marriage recognition is
likely to become the law of the land anyway.
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