Gay marriage passes first appeals court test

A federal appeals court today declared Utah’s same-sex marriage ban unconstitutional in the first appellate ruling on state marriage laws as the issue makes its way to the U.S. Supreme Court.

The three-judge panel of the 10th U.S. Circuit Court of Appeals decided the issue by a 2-1 vote, with Judge Paul J. Kelly Jr. dissenting.

“We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment,” Kelly wrote in the dissenting opinion. The 14th Amendment guarantees all persons equal protection under the law.

The 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. All of those states except New Mexico also have bans on same-sex marriage. Wednesday’s decision will not take effect immediately because the court stayed its ruling until the nation’s highest court can consider the case.

Utah was one of the first states in which a federal judge overturned a ban on same-sex marriage, citing the U.S. Constitution’s equal-protection clause. Judge Robert Shelby issued his ruling in late December. Six months later, judges in Oklahoma, Virginia, Texas, Kentucky, Michigan, Idaho, Oregon, Pennsylvania, and Wisconsin have issued nearly identical rulings.

After Shelby’s ruling, the 10th Circuit denied Utah’s request to for a stay while it appealed the decision. Utah sent an emergency request to the Supreme Court, which unanimously issued a stay. Analysts say that decision indicates the court wants more discussion about states’ roles in defining marriage. The issue likely will be the highlight of the next Supreme Court term, which starts this fall.

Meanwhile, federal district courts continue to weigh in on same-sex marriage state-by-state. A federal judge in Indiana on Wednesday also struck down its ban on gay marriage. Indiana outlawed same-sex marriage by statute in 1997, but has never passed a constitutional amendment defining marriage as between one man and one woman.

“These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street,” U.S. District Judge Richard Young wrote in his opinion. “The Constitution demands that we treat them as such.” The clerk of Marion County, home to Indianapolis, said the office would immediately start issuing marriage licenses to gay couples. The Indiana attorney general’s office plans to appeal the ruling.