Federal judge strikes down Utah’s ban on same-sex marriage
By Brooke Adams
The Salt Lake Tribune
Published: December 20, 2013 02:07PM
Updated: December 20, 2013 06:05PM
A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.
“The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” wrote U.S. District Court Judge Robert J. Shelby. “Accordingly, the court finds that these laws are unconstitutional.”
Ryan Bruckman, spokesman for the Utah Attorney General’s Office, said its attorneys plan to appeal the decision and were currently drafting a motion to seek a stay of the ruling “as quickly as we can get it taken care of.”
Utah Gov. Gary Herbert issued this statement late Friday afternoon: “I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah.”
Several hundred people descended on the Salt Lake County Clerk’s Office Friday afternoon to get licenses. A pastor from the First Baptist Church was on hand to conduct wedding ceremonies.
Shelby’s ruling is the first federal decision to address whether a state may ban same-sex marriages or refuse to recognize legal same-sex marriages since the U.S. Supreme Court’s landmark decision this summer that struck down the federal Defense of Marriage Act. The Utah judge ruled just 16 days after he heard arguments in the case and well before his self-imposed deadline to render a decision by Jan. 7, when the next hearing in the matter was to be held.
“It feels unreal,” said Moudi Sbeity, who with his partner Derek L. Kitchen were plaintiffs in the case. “I’m just very thrilled that Derek and I will be able to get married soon, if all goes well and the state doesn’t appeal. We want a farmer’s market wedding because it’s where we spend a lot of time.”
The two make and sell Mediterranean-style spreads at farmer’s markets throughout Utah. Sbeity said he and Kitchen, both 25, had just heard the news from their attorney. Kitchen “just has a very large smile on his face,” Sbeity said.
The other plaintiffs in the lawsuit are: Karen Archer, 67, and Kate Call, 60; and Kody Partridge, 47, and Laurie Wood. Archer and Call already have a marriage license issued in Iowa, but joined the lawsuit to protest that their legal marriage was not recognized in Utah. The other two couples applied for a license from the Salt Lake County Clerk’s office in March but were denied one.
Attorneys Peggy A. Tomsic and James E. Magleby, who represented the plaintiffs, called the decision historic, saying in a statement that it brings “marriage equality to Utah, not only for the plaintiffs, but all other same-sex couples residing in Utah who desire to marry or have their legal marriage from another state recognized in Utah.”
“While the Utah decision only directly affects same-sex couples in Utah, it will provide legal precedent to support other plaintiffs’s constitutional challenges to similar state laws in the remaining states where there is marriage inequality,” the statement said.
“We cannot capture in words the gratitude and joy plaintiffs feel that Judge Shelby had the courage to declare, as the United States Constitution requires, that same-sex couples, like all other U.S. citizens and Utah residents, are constitutionally entitled to marriage equality in Utah.”
Salt Lake County District Attorney Sim Gill said as of 3 p.m., he advised clerk Sherrie Swensen to begin issuing marriage license applications to same-sex couples immediately.
“We told them they should be processed in the same manner as all other applications,” Gill said. “The order enjoins the state from enforcing [Amendment 3]. Unless there is a change, the current state of the law is that we cannot prohibit it.”
But, Gill warned, “This is a moving thing.” The state attorney general’s office may seek a stay, which could change the effect of the law, Gill said.
All three of the candidates to replace Attorney General John Swallow, who resigned under investigation earlier this month, have said they would not simply accept a federal ruling legalizing same-sex marriage. Gov. Gary Herbert is expected to select the new attorney general in the next few weeks. Those candidates are Sean Reyes, Brian Tarbet and Bob Smith.
The Church of Jesus Christ of Latter-day Saints, which remained on the sidelines during the district court process unfolding in its home state, broke that silence Friday.
“The church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect,” said spokesman Cody Craynor. “This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman, and we are hopeful that this view will be validated by a higher court.”
Shelby said that while he agreed with Utah that marriage has traditionally been left to regulation by the states, such laws must comply with the Constitution.
“The issue the court must address in this case is not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution,” the judge said.
Shelby acknowledged the politically charged climate that surrounds the issue and said that was particularly true in Utah, where 66 percent of voters approved the amendment banning same-sex marriage in 2004.
“It is only under exceptional circumstances that a court interferes with such action,” Shelby said. “But the legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its Legislature or a referendum, or whether the laws passed by the widest or smallest of margins.”
The judge noted both parties drew arguments from the U.S. Supreme Court’s decision in United States v. Windsor, which struck down the federal act without resolving the issue in the context of state laws banning same-sex marriage. Shelby said Justice Antonin Scalia predicted in his dissent that would come next as plaintiffs raised similar claims about harms stemming from state laws.
And Shelby said other decisions addressed the “tension” between a state’s right to regulate marriage and individual liberty and equal protection rights, among them Loving v. Virginia, which ended bans on interracial marriage. Those rulings held that individual rights take precedence over states’ rights when the two are in conflict, the judge said.
“Given the importance of marriage as a fundamental right and its relation to an individual’s rights to liberty, privacy, and association, the Supreme Court has not hesitated to invalide state laws pertaining to marriage whenever such a law intrudes on an individual’s protected realm of liberty,” Shelby said.
Shelby recounted the discrimination and harm the plaintiffs testified they experienced and said the state’s ban on their right to choose “a same-sex marriage partner renders their fundamental right to marry as meaningless as if the state recognized the plaintiffs’ right to bear arms but not their right to buy bullets.”
The judge said took issue with the state’s argument that the plaintiffs “do not possess the qualifications” to enter a marriage relationship, saying there is “no dispute that the plaintiffs are able to form a committed relationship with one person to the exclusion of all others” and to raise children within that union if they desire.
Shelby said the state’s argues about the tie between marriage and procreation were not compelling.
“However persuasive the ability to procrreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view,” the judge said. “The state’s position demeans the dignity not just of same-sex couples, but of the many opposite sex couples who are unable to reproduce or who choose not to have children.”
He also dismissed the state’s argument that the plaintiffs were seeking a new right, saying it’s simply the same right “currently enjoyed by heterosexual individuals: the right to make a public commitment to forn an exclusive relationship and create a family with a partner with whome the person shares an intimate and sustaining emotional bond.”
With the ruling, Utah becomes the 18th state where same-sex marriage has become legal through either court decisions, legislation or referendums.
The ACLU of Utah filed an amicus brief in the case and legal director John Mejia said Friday the organization was “thrilled” by the decision.
“We think that it was a discriminatory law that only served to deny loving and committed couples the protection and dignity of marriage,” he said. “We congratulate the brave plaintiffs for making such a historic stand and their legal team for putting up such a great fight.”
Cliff Rosky, University of Utah law professor and chairman of the board for Equality Utah, said he is optimistic Shelby’s ruling will survive appeal.
“We are thrilled that our federal courts have finally recognized that Utah’s Amendment 3 is unconstitutional. It demeans the dignity of gay relationships,” Rosky said. “[The ruling] is cautious and thoughtful, based explicitly on the Supreme Court’s ruling from this summer. I fully expect it to be upheld on appeal.
“When that happens, people will soon enjoy the freedom to marry in Utah and all 50 states.”
Utah Democratic Chairman Jim Dabakis, who is gay and was getting a marriage license with his long-time partner Friday afternoon, called the decision reasonable. He said while it is likely to be appealed, he remained confident that gay Utahns would soon be able to get married.
Dabakis noted the generational divide on the issue where young people, including younger Republicans, are more accepting of gay marriage than older people.
“What we need to do is a little hand holding with Utahns of a certain generation who really don’t understand that there is no need to feel threatened by gay people, that we are just like everybody else,” he said.
And Dabakis said there needs to be a recognition that civil marriage and religious marriage are not necessarily the same thing.
“I don’t believe any religion should be coerced into performing a marriage they are not comfortable with and conversely no religion should be able to take away a civil right that should be available across the country,” he said.
Tribune reporter Erin Alberty, Matt Canham, Peggy Fletcher Stack and Matt Piper contributed to this report.
brooke@sltrib.com
Twitter: @Brooke4Trib
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