Court of Appeals affirms: Utah marriage ban unconstitutional |

Court of Appeals affirms: Utah marriage ban unconstitutional

Alan Maguire, The Park Record

Marriage quality flags fly over Main Street from the deck of Wahso during a reception for the film The Case Against 8 during this year s Sundance Film Festival. (Park Record File Photo)

"They desire not to redefine the institution but to participate in it."

That’s what the 10th Circuit Court of Appeals said on Wednesday about same-sex marriage proponents when it affirmed by a 2-1 decision District Court Judge Richard Shelby’s landmark December 2013 decision striking down Utah’s same-sex marriage as unconstitutional.

The ban, known as Amendment 3, passed via a popular-vote referendum in 2004 with the support of 66 percent of voters

While district-level federal judges throughout the country have been ruling in favor of same-sex marriage again and again over the past year, the 10th Circuit’s was the first such decision by an appeals court.

"The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box," the decision read. But same-sex marriage is quickly turning into a ballot box issue, in a different way, as it becomes a divisive issue in election campaigns.

Utah Gov. Gary Herbert issued a brief statement following the decision, saying that he was "disappointed" in it. "[A]s I have always said, all Utahns deserve clarity and finality regarding same-sex marriage and that will only come from the Supreme Court," he said.

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There is, however, no guarantee that the state’s appeals will be heard, particularly since there has not been a split among federal judges striking down same-sex marriage bans – all the judges have been ruling in the same direction – in favor of same-sex marriage.

In February, 23 of Utah’s 29 state senators and 58 of its 75 representatives signed a brief that was submitted to the court arguing against same-sex marriage. The brief echoed the arguments of the state and largely focused on marriage as it relates to children.

Park City’s representative in the Utah House of Representatives, Kraig Powell, signed onto that brief.

"I think it’s appropriate for the plaintiffs who feel wronged to pursue this case and I think that the Utah governmental system that is defending laws that are in Utah also needs to continue its defense, just so we have a full and fair process all the way around," he told The Park Record Friday.

"It’s one of the, I think, two or three most important political and legal issues, constitutional issues, in our lifetimes," he said.

Powell is being challenged for his seat in November by Glenn Wright of Park City, and Wright says the brief is a big reason why.

"That was one of the triggers convincing me to run," Wright, the Summit County Democratic Party Chairman, told The Park Record. He described bans on same-sex marriage as "state-sanctioned discrimination against a minority group."

"How is this different from the governors and sheriffs of the civil rights era standing in the doors of universities and schools to prevent integration," he said. "How is it different from those who advocated the Jim Crow laws?"

The decision by the governor and attorney general to continue fighting for the marriage ban, Wright said, has "wider ramifications" and that "it’s bigger than just gay marriage."

"It sends a message to the population that yes, you can discriminate against these folks. Whether it’s in the workplace, whether it’s harassment, whether it’s bullying in schools, or even to the extent that it creates in some people’s minds a justification for hate crimes. It’s just unacceptable from our government," he said.

Powell took issue with that assertion.

"I think that this is a time of transition in our state and our country and that all sides need to be respectful of what is a difficult process," he said. "I think the legal system is actually serving its proper purpose and both sides have acted in an appropriate manner."

Utah Attorney General Sean Reyes has been in lockstep with Gov. Herbert on the same-sex marriage issue and announced Wednesday his intention to appeal to the Supreme Court. He is being challenged this November by Democrat Charles Stormont, who is criticizing Reyes’ stance on the issue.

"This appeal is an enormous waste of money and we should be fighting to protect people’s rights, not to take them away," Stormont said Wednesday. "The state has no business dictating how people build their families, and the State should never tell children or their parents that they are second class citizens."

"From the right to marry who you love to the right to bear arms, my pledge to Utahns is that I will stand up for all your constitutional rights and follow the law, not political trade winds," he added.

Shelby, like his fellow judges throughout the country, frequently cited the June 2013 Supreme Court decision United States v. Windsor as key guidance in his ruling. In Windsor, the Supreme Court struck down key parts of the Defense of Marriage Act – a 1996 law that allowed states to refuse to recognize same-sex marriages legally performed in other states.

Quoting from Windsor, the 10th Circuit wrote that Amendment 3 "tells those couples, and all the world, that their otherwise valid marriages are unworthy of [Utah’s] recognition."

"The differentiation demeans the couple, whose moral and sexual choices the Constitution protects," they continued.

Many of the state’s arguments in favor of Amendment 3 are that it benefits children. The 10th Circuit was not convinced.

"These laws deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity," it said. "Read literally, they prohibit the grant or recognition of any rights to such a family and discourage those children from being recognized as members of a family by their peers."

The 10th Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The court stayed its decision — put its practical effects on hold — in order to allow Utah to appeal.

The state is now down to two options for appeal — it can ask the entire 10th Circuit to review the decision, as Wednesday’s was made by a panel of only three of the circuit’s judges, or appeal to the Supreme Court.