Windy City Media Group Frontpage News


home search facebook twitter join
Gay News Sponsor Windy City Times 2023-02-22



Tenth Circuit agrees Utah ban unconstitutional
by Lisa Keen, Keen News Service

This article shared 2593 times since Wed Jun 25, 2014
facebook twitter google +1 reddit email

Saying that it "emphatically agrees" with numerous court decisions in the past year that have struck down bans on same-sex couples marrying, a three-judge panel of the Tenth Circuit U.S. Court of Appeals voted 2 to 1 Wednesday to uphold a lower court decision striking down Utah's ban Wednesday as unconstitutional. The majority said "it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples."

The decision came in Herbert v. Kitchen included an immediate stay of its enforcement pending the state's anticipated appeal to the full circuit bench.

It is the first ruling from a federal appeals court and, thus, is the closest to being appealed to the U.S. Supreme Court, where most legal observers expect the validity of statewide bans against marriage licenses for same-sex couples will be decided in about a year.

Utah officials have until September 23 to exercise a rarely used option of appealing the panel decision directly to the U.S. Supreme Court.

"The Tenth Circuit's decision states that Utah couples will not be able to marry until after the Supreme Court decides whether to review the case," noted Shannon Minter, legal director for the National Center for Lesbian Rights, which participated with private attorneys in Utah to mount the challenge to Utah's ban. "If the Supreme Court decides to review the case, couples will not be able to marry until after the Supreme Court issues its decision."

But Lambda Legal's national legal director Jon Davidson notes that, while Kitchen is likely to be the first same-sex marriage ban case to be filed with the Supreme Cour post-Windsor, "the Court does not have to take the first case to reach it."

"By the time the Court decides whether or not to accept review in Kitchen, it may well also have a petition from a decision" in the Fourth, Sixth, and Ninth circuits. The Fourth Circuit case, led by Ted Olson and David Boies with the American Foundation for Equal Rights, was argued shortly after the Kitchen appeals case was argued. The Sixth Circuit will hear arguments in five cases, including one from Lambda, in August. And the Ninth Circuit will hear arguments in three cases in September.

"I would not be concerned if it were the Kitchen case that is the case the Supreme Court hears," said Davidson. "It was been well-briefed and argued, with excellent lawyering by Peggy Tomsic, her firm ( Magleby & Greenwood ), and NCLR.

"What struck me immediately upon reading the opinion was the 10th Circuit's decision to avoid dealing with the question whether sexual orientation discrimination requires heightened scrutiny," said New York Law School Professor Arthur Leonard, editor of Lesbian/Gay Law Notes. "They avoided it entirely by treating this as a fundamental rights case. Fundamental rights cases always get strict scrutiny, whether they arise in a pure due process context or whether they involve an equal protection claim."

Jon Davidson, legal director for Lambda Legal, explained, the Tenth Circuit applied strict scrutiny —the toughest judicial standard of review—on Utah's ban "based on its conclusion that Utah's marriage ban violated a fundamental right — the fundamental right to marry."

"Strict scrutiny applies in three circumstances: ( 1 ) on a due process claim, where a fundamental right is infringed; ( 2 ) on an equal protection claim, where one group is being treated unequally in access to a fundamental right; or ( 3 ) when a suspect classification is being utilized to treat one group differently than others," said Davidson. "The Tenth Circuit applied strict scrutiny based on the first two grounds ( fundamental right to marry, and unequal denial to same-sex couples of access to that fundamental right ). It did not address whether sexual orientation is a suspect classification or whether such discrimination is otherwise entitled to heightened judicial scrutiny."

The appeals panel's vote

Judges Carlos Lucero ( a Clinton appointee ) and Jerome Holmes ( a George W. Bush appointee ) voted to uphold the district court's ruling that the Utah ban is unconstitutional.

Judge Paul Kelly ( an appointee of President George H.W. Bush ) concurred on a procedural matter ( legal standing ) but dissented on the key issue. Kelly is the panel's most conservative member.

The majority opinion

Judge Carlos Lucero wrote the majority's 65-page opinion. Not surprisingly, he referred frequently to the U.S. Supreme Court's decision last June to strike a key section of the Defense of Marriage Act ( DOMA ) in U.S. v. Windsor.

"…The drafters of the Fifth and Fourteenth Amendments 'knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," wrote Lucero. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'

"…A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court [opinion in Kitchen] eloquently explained, 'it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.' Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized."

The majority opinion made frequent references to the impact of the Supreme Court's decision in Windsor, striking DOMA. For instance, noting that Utah had argued that its laws banning same-sex couples from marrying "merely define marriage within its borders," the majority said Windsor demonstrated that a provision of a law labeled a "definition" is not immune from constitutional scrutiny.

The majority referenced many other Supreme Court decisions, too, including the 1996 landmark decision in U.S. v. Virginia where the court said it was a violation of equal protection rights to deny women the ability to attend Virginia Military Institute.

"Whether a state has good reason to exclude individuals from the marital relationship based on a specific characteristic certainly comes into play in determining if the classification survives the appropriate level of scrutiny," wrote Lucero. "...A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded."

The majority also cited Bowers v. Hardwick, the 1986 decision that upheld state laws banning intimate relations between consensual same-sex adults and its 2003 decision in Lawrence v. Texas, which said such bans were unconstitutional.

"The Court's rejection [in Lawrence] of the manner in which Bowers described the liberty interest involved is applicable to the framing of the issue before us," wrote Lucero. "There was clearly no history of a protected right to 'homosexual sodomy,' just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appellants is too narrow. Just as it was improper to ask whether there is a right to engage in homosexual sex, we do not ask whether there is a right to participate in same-sex marriage.

The majority characterized Utah's proffered reasons for banning same-sex couples from marrying as relying on "a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples."

"Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative," noted Lucero. "But the state permits many other types of non-procreative couples to wed."

"Only same-sex couples, [Utah officials] claim, need to be excluded to further the state's interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to [Utah officials'] interest in fostering biological reproduction within marriages. The Equal Protection Clause 'is essentially a direction that all persons similarly

situated should be treated alike.' Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee."

An historic dissent weighs in

In writing a 21-page dissent to the majority opinion, Judge Paul Kelly earned the distinction of becoming the first federal judge post-Windsor to say that a state ban on same-sex couples marrying is constitutionally sound.

Kelly said he would not analyze Utah's ban as impinging on a fundamental right to marry because "for centuries, 'marriage' has been universally understood to require two persons of opposite gender."

He said he would scrutinize Utah's ban with simple rational basis. On that basis, he said, he would accept the law as "rationally related to ( 1 ) responsible procreation, ( 20 ) effective parenting, and ( 3 ) the desire to proceed cautiously in this evolving area."

While the Supreme Court has recognized a fundamental right to marriage, wrote Kelly, "every decision vindicating that right has involved two persons of the opposite gender."

Kelly said that "requiring every state to recognize same-gender unions —contrary to the views of its electorate and representatives— turns the notion of a limited national government on its head."

© 2014 Keen News Service. All rights reserved.

This article shared 2593 times since Wed Jun 25, 2014
facebook twitter google +1 reddit email


Gay News

WORLD Spain, South Korea festival, Eurovision, marriage items, Sri Lanka 2023-05-19
- Spain became the latest country to join a U.S. initiative that seeks to promote LGBTQI+ rights around the world, The Washington Blade reported. "Promoting and protecting the human rights of lesbian, gay, bisexual, transgender, queer and ...

Gay News

Billy Masters: Carrie Fisher's family declare Walk of Fame star wars 2023-05-08
- "Days after Billy Masters revealed he spent time with Darren Hayes on the final stop of his tour (and talked about his butt), Darren announces his marriage is over: Coincidence?" —A fan wrote this to "Ask ...

Gay News

WORLD Hungarian bill, Biden's visit, HIV study, trans athlete ousted, Prince Harry 2023-04-21
Video below - Hungarian legislators passed a bill that enables citizens to report anonymously on same-sex couples who raise children to authorities, Bloomberg reported. Hungary's constitution protects the institution of marriage as a formation "between one man and ...

Gay News

WORLD Queer soldier, anti-trans interview, Eurovision, couple arrested, soccer match 2023-04-08
- A queer Ukrainian solider has called for same-sex marriage to be legalized in the country, according to PinkNews. Anna "Kajhan" Zyablikova, who is serving in the 47th Brigade of Ukraine's armed forces, told the i paper ...

Gay News

WORLD Japanese poll, Sydney Mardi Gras, mpox, rugby study, soccer player 2023-02-19
- Sixty-four percent of respondents to a Kyodo News poll believe same-sex marriage should be recognized in Japan, the media outlet noted. In the telephone survey, 88.4% also said recent remarks hostile to LGBTQ+ people by a ...

Gay News

Gay Calif. lawmakers introduce Prop 8 repeal 2023-02-14
- On Valentine's Day, two gay California lawmakers introduced a constitutional amendment to repeal Prop 8—the state's same-sex marriage ban that remains on the books despite being ruled unconstitutional years ago, according to The Bay Area Repo ...

Gay News

WORLD Church of England, Japanese officials, Hong Kong ruling, drag kings 2023-02-11
- The Church of England has voted to bless same-sex marriages for the first time in its history; however, its ban on conducting ceremonies will stay in place, PinkNews reported. It was approved after a six-year consultation ...

Gay News

WORLD Indian marches, delegation in Cuba, anti-LGBTQ+ investigation 2023-01-15
- Hundreds of people took part in the first Delhi Queer Pride march in three years as pressure grows for legal recognition of same-sex marriage in India, The Manila Times noted. In March, the South Asian's top ...

Gay News

NATIONAL Testifying in D.C., Brittney Griner, marriage law, school policies 2022-12-18
- WARNING: This week's news contains graphic content. Survivors of the Club Q shooting in Colorado Springs that killed five people and injured approximately 20 others joined GLAAD and other advocates in providing testimony before the House ...

Gay News

Cook County's Kevin Morrison attends signing of Respect for Marriage Act at the White House 2022-12-13
-- From a press release - Washington D.C. — December 13thth 2022 — Cook County Commissioner Kevin Morrison attended the signing of the historic Respect for Marriage Act recently passed by both chambers of congress. The bill guarantees the federal rights ...

Gay News

With President Biden's signature, Respect for Marriage Act is law 2022-12-13
-- From a press release - WASHINGTON — The Human Rights Campaign (HRC) — the nation's largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — celebrated today as President Biden signed the Respect ...

Gay News

President Biden signs Respect for Marriage Act into law; groups and leaders respond 2022-12-13
-- From press releases - In response to President Biden signing the Respect for Marriage Act into law, groups and leaders release statements. ...

Gay News

Respect for Marriage Act passage important step but not equity says LGBTQIA+/ally Catholic group 2022-12-09
-- From a press release - Dec. 8, 2022. DignityUSA, the nation's foremost organization of Catholics working for justice, equality, and full inclusion of LGBTQIA+ people in our church and society, is pleased that both houses of Congress have now passed the ...

Gay News

Groups and leaders celebrate passage of the Respect for Marriage Act 2022-12-08
-- From press releases - U.S. Representative Mike Quigley: Washington, D.C.— Today, U.S. Representative Mike Quigley (IL-05), Vice-Chair of the Congressional LGBTQ+ Equality Caucus, released the following statement celebrating the passage of ...

Gay News

Congress passes Respect for Marriage Act, sends to President Biden for signature 2022-12-08
-- From a press release. Video below - (New York, NY - December 8, 2022) — GLAAD, the world's largest lesbian, gay, bisexual, transgender and queer (LGBTQ) media advocacy organization, is responding to the passage of the Respect for Marriage Act in the U.S. ...


Copyright © 2023 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.






About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots
Identity      BLACKlines      En La Vida      Archives      Advanced Search     
Windy City Queercast      Queercast Archives     
Press  Releases      Join WCMG  Email List      Email Blast      Blogs     
Upcoming Events      Todays Events      Ongoing Events      Bar Guide      Community Groups      In Memoriam     
Privacy Policy     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.