Constitutional Law

10th Circuit rules Utah gay-marriage ban is unconstitutional

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A divided federal appeals court panel in Denver on Wednesday upheld a decision by a federal judge in Utah that a voter-approved ban on same-sex marriage is unconstitutional under the 14th Amendment.

“Courts do not sit in judgment of the hearts and minds of the citizenry,” said the Denver-based 10th U.S. Circuit Court of Appeals majority after ruling (PDF) that “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.”

The precedent applies to all six states covered by the 10th Circuit: However, the court stayed its decision pending an expected appeal by the state to the U.S. Supreme Court, the Salt Lake Tribune reports.

Today’s decision is the first by a federal appeals court since the U.S. Supreme Court struck down central provisions of the Defense of Marriage Act a year ago, according to the Tribune and the Wall Street Journal Law Blog (sub. req.).

A dissenting judge on the panel said same-sex couples have no fundamental constitutional right to marry.

Meanwhile, a federal district court judge held Wednesday that Indiana’s ban on same-sex marriage is also an unconstitutional denial of equal protection.

“Same-sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana,” wrote U.S. District Judge Richard Young. “These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”

Young did not stay his ruling, resulting in some same-sex couples rushing to the Marion County courthouse in Indianapolis, according to the Associated Press and the Indianapolis Star.

The clerk’s office there began issuing licenses to same-sex couples shortly after the ruling, and Clerk Beth White said she would also conduct brief marriage ceremonies on a first-come, first-serve basis.

The first same-sex couple to marry, Craig Bowen and Jake Miller, had tied the knot by lunchtime.

The window of opportunity for others may be limited: The state is expected to ask a federal appeals court for a stay of Young’s ruling.

An American Civil Liberties Union press release provides more details about the Southern District of Indiana case, which consolidates litigation brought by three couples.

Related coverage:

ABA Journal: “DOMA’s demise brings new challenges” “Despite DOMA win, some same-sex couples see a tax-related downside; others get estate tax refunds” “Federal judge strikes Pennsylvania ban on same-sex marriage; 19 states now OK such weddings”

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