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Religious Tolerance logo

Same-sex marriage (SSM) in Utah:

Part 14: 2014-APR/MAY: Circuit Court
of Appeals holds hearings (Cont'd).
District Court orders state to recognize
over 1,000 legal same-sex marriages.

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This topic is continued from the previous essay.

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The acronym "SSM" refers to same-sex marriage;
"LGBT refers to the Lesbian, Gay, Bisexual & Transgender community.

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LGBT symbol 2014-APR-10: Hearings held by the 10th U.S. Circuit Court of Appeals (Cont'd):

The media widely reported that the three judge panel of the Court appeared conflicted on marriage equality.

USA Today reported that the three judge panel who were selected at random from among all of the 10th Circuit judges:

"... appeared to be of three minds.

Judge Paul Kelly, an appointee of former president George H.W. Bush, was the most skeptical of same-sex marriage rights. Judge Carlos Lucero, appointed by Bill Clinton, appeared strongly in favor.

That left George W. Bush's judge, Jerome Holmes, in the middle. He came out forcefully, wondering why bans on same-sex marriage are any more legitimate than earlier bans on interracial marriage, which were struck down by the Supreme Court. But he also expressed some support for Utah. ..."

If this evaluation of the three judges' beliefs is accurate, then the panel may end up with a split 2:1 decision in favor of marriage equality.

Judge Holmes's comments were of particular interest. He drew a comparison between this case, and Loving v. Virginia.

In 1967, the U.S. Supreme Court issued its ruling in Loving which declared an anti-miscegenation law in Florida and over a dozen similar laws in other contiguous states to be unconstitutional and unenforceable. Interracial marriage became instantly legal in all 50 states. Loving is the closest parallel case to Kitchen v. Herbert and to the many other recent District Court rulings on marriage equality.

Judge Holmes noted:

"[In 1967] What barred them from getting married was race. In this instance, what makes it any different? Why does it matter who's claiming the right [to marry]? ... Here you have a man who wants to marry another man. The only thing that prevents it is gender." 1,2

Gene Schaerr responded that it is the state gets to define marriage. He said:

"You have to first decide what marriage is."

Schaerr's response reflects the beliefs by some constitutional experts about marriage laws"

  • All, or essentially all, agree that the U.S. Constitution requires each state to define who is eligible to marry.

  • But, on the specifics of a state's marriage law, they differ

    • Many very conservative constitutional experts believe that legislatures in individual states can pass marriage laws -- and voters can amend state constitutions -- to ban same-sex marriage. Further, the laws and amendments are valid even if they violate the U.S. Constitution.

    • Most specialists in constitutional law believe that states are free to pass marriage laws that match their social and cultural standards, but only if they conform to the requirements of the U.S. Constitution.

The main sticking point are the equal protection and due process clauses of the of the U.S. Constitution's 14th amendment . They require the federal and state governments to treat people equally. By extension, this means that couples must also be treated equally. Some argue that since couples composed of adults of different sexes, religions, races, skin colors, nationalities, languages, etc. can marry, that same-sex couples should also be allowed to marry. They regard anything short of marriage equality for the LGBT community to be unconstitutional.

Schaerr also said that Loving was not related to the present case because it did not change the historical definition of marriage as restricted to one woman and one man.

Circuit Judge Paul Kelly Jr. appears to agree that Utah lawmakers and voters should be free to define eligibility for marriage any way that they wish. 2

However, according to the Washington Post:

"Lucero was more supportive of lawyer Peggy A. Tomsic, who represented the couples.

Tomsic said deference to democracy does not mean that the majority can curb the constitutional rights of a minority.

But she was pressed by Kelly on the fact that the Supreme Court has not found there is a constitutional right for same-sex couples to marry.

Kelly said that he was not inclined to believe those who voted to put the traditional definition of marriage in the Utah constitution did so because they were mean-spirited or bigots."

'Just because you disagree with the state doesn’t make it irrational, does it?' he asked.

"Tomsic said the state had failed to provide any proof for its rationale that same-sex parenting is worse for a child than other households. Even if the state must only prove it has a rational basis for a decision, she said, that standard is not 'toothless'."

'When the government separates people into classes for unequal treatment,' Tomsic said, the burden is on the state to prove why.'

Utah’s policy on marriage, she said, cannot be reconciled with its stated goals. The state’s ban does not 'reaffirm' traditional marriage; 'it is to exclude' same-sex couples.

Holmes said Tomsic was right that Utah cannot withhold something that is a constitutional right.

'What we’re trying to determine is, what is the constitutional right?' he said."

The ruling by the panel is not expected for at least a few months. If the panel does not stay their decision then it would be binding on all six states within its jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. However, it is widely expected to be stayed and quickly appealed to the full Circuit Court.

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2014-MAY-19: District Court rules that Utah must recognize the 1,300 same-sex marriages recently registered:

Back in 2013-DEC, a U.S. District Judge Robert J. Shelby ruled that same-sex couples must be able to marry in the state. Before the state could obtain a stay of this ruling, 17 days later, approximately 1,300 same-sex couples had obtained marriage licenses. Over 1,000 were subsequently married. Utah initially refused to recognize these marriages as valid. However, the federal government did recognize them, and made the newly married couples eligible for some 1,138 federal benefits, protections, and rights on the same basis as opposite-sex couples are eligible.

The American Civil Liberties Union of Utah filed a lawsuit in federal District Court asking that the married couples' marriages be recognized by the state, and that they receive the full set of a few hundred benefits, protections, and rights given to opposite-sex married couples.

Although this confused situation has happened in other states, U.S. District Judge Dale A. Kimball was the first federal judge to rule that the state must recognize valid same-sex marriages performed during those 17 days. He handed down his decision. 3

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Richard Wolf, "Appeals court appears divided on Utah same-sex marriage," USA Today, 2014-APR-10, at:
  2. Robert Barnes, "Appeals court struggles to decode Supreme Court message on gay marriage right," Washington Post, 2014-APR-10, at:
  3. Marissa Lang, "Judge: Utah must honor same-sex marriages performed during 17-day window," The Salt Lake Tribune, 2014-MAY-19, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM sub menu > Utah > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-APR
Latest update: 2014-AUG-10
Author: B.A. Robinson

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