DENVER — When the U.S Supreme Court struck down the federal Defense of Marriage Act exactly one year ago, it stopped short of saying states cannot ban gay marriage.
But in a string of 17 straight rulings, judges have argued the high court’s decision in U.S. vs Windsor means just that: States cannot get in the way of gay couples who want to marry.
The most significant of those findings came Wednesday when the 10th U.S. Circuit Court of Appeals in Denver became the first appellate court to weigh in post-Windsor and upheld a ruling that found Utah’s gay marriageban was unconstitutional.
That decision increases pressure on the high court to make explicit what it did not say last year — that gaycouples nationwide have a right to marry.
“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.”
Utah is considering an appeal to the Supreme Court, but there is no guarantee its case will be the one that makes it there. Five other appellate courts are considering similar cases, and the Supreme Court could take any of them.
The soonest the high court could decide a gay marriage case is 2015, but it often 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 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 tolerant of the slow pace of the courts.
That was on display in Colorado on Thursday, when the county clerk in the liberal city of Boulder issued same-sex marriage licenses even though the 10th Circuit panel stayed its decision pending an appeal. Along with Utah, the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma and Wyoming.
Colorado’s attorney general declared the licenses invalid because the state’s gay marriage prohibition is still the law. But Clerk and Recorder Hillary Hall said she would continue issuing them until a court stops her.
Wednesday’s ruling stressed the urgency of overturning gay marriage bans rather than waiting for elected officials to write new laws.
“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.
John Eastman of the National Organization for Marriage argued the dissent increases the likelihood the Supreme Court will weigh in. Eastman, a law professor at Chapman University in Southern California, said he doubts there are five votes on the high court “to impose marriage on the 30-some states that don’t have it now.”
On the eve of the last year’s Windsor ruling, Justices Ruth Bader Ginsburg and Stephen Breyer, seen as sympathetic to gay rights, talked about the importance of not having the court get too far ahead of the country in ruling on major social issues. They were speaking about abortion, in Ginsburg’s case, and interracialmarriage, in Breyer’s case.
But the pace of change has been so swift with gay marriage — as Ginsburg has publicly noted — that there may no longer be a reluctance among some justices to deal with it.
Wednesday was an illustration of the shift on the subject. The 10th Circuit ruling came just minutes after a federal judge threw out Indiana’s same-sex marriage ban in a decision that immediately allowed gay couples to wed. But the Utah ruling’s legal significance was far greater because it came from a higher court.
Evan Wolfson, president of Freedom to Marry, said the victory was even 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.
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,” Perkins said. “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.”
10th U.S. Circuit Court of Appeals ruling, https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf