Utah Federal Appeals Court Ruling Finds Same-Sex Marriage Bans ‘Serve Only To Oppress’
A federal appeals court finds a right to marriage for same-sex couples, and, in an historic ruling, not only finds Utah’s same-sex marriage ban unconstitutional — upholding a lower court ruling — it calls bans on same-sex marriage oppressive.
In a two to one decision today, the 10th Circuit Court of Appeals has upheld the decision by Judge Robert Shelby’s December that found Utah’s Amendment 3, banning same-sex marriage, unconstitutional.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm. … [Under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.”
As noted by the court in its 108 page ruling (PDF), this is the first time the 10th Circuit has taken up the issue of same-sex marriage bans. And while more than 15 federal judges have upheld marriage equality as a fundamental right across the nation, this is the first such appellate court to make such a ruling.
And the court did not mince words about its views that Amendment 3 is “oppressive:”
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. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.†Id. at 579. 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.
The court also went directly after Utah’s claims that children of same-sex parents are worse off than children of opposite-sex parents, saying:
“[Bans on same-sex marriage] deny to the children of same-sex couples the recognition essential to stability, predictability, and dignity”
One of the biggest arguments Utah made before the court was that Amendment 3 should be upheld because “the majority of Utah citizens are in favor of it.” The 10th Circuit strongly disagreed, saying that fundamental rights cannot be decided at the ballot box.
“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized. We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The court also reemphasized that its ruling (like all other rulings in favor of same-sex marriage) does not in anyway force a religious institution to perform any ceremonies they do not with to.
“We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.â€). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit.”
The 10th Circuit has placed a stay on its ruling, which means that no further marriages by same-sex couples will take place while Utah decides whether to appeal the ruling (they presumably will) to the U.S. Supreme Court. It could be 2015 before the high court takes up the case, if the court chooses to take it up at all.
Meanwhile, Utah’s second lawsuit over same-sex marriages, which is being brought by the Utah ACLU, is also before the 10th Circuit court. In that case, which has not received a ruling yet, same-sex couples are suing the state for refusing to allow them to legally adopt the children they are already raising. The adoption process was begun while same-sex marriage was legal in Utah, before the stay was put in place.
Elsewhere in the country, a judge in Indiana also ruled today that that state’s ban on same-sex marriage is unconstitutional, and struck down that law.
You can read the full ruling from the 10th Circuit here.
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Image: Moudi Sbeity (R) and Derek Kitchen, plaintiffs in Utah’s freedom to marry case. Photo by National Center for Lesbian Rights
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BREAKING NEWS
Trump Lawyer’s ‘Critical Evidence’ Will Help DOJ Make Decision to Charge ‘Without Significant Delay’: Former Prosecutor
Donald Trump‘s attorney Evan Corcoran, who allegedly directed another Trump attorney to draft the false statement claiming all classified and sensitive documents had been returned, has been ordered to testify before a grand jury and hand over documents and records to Special Counsel Jack Smith in the Mar-a-Lago classified documents criminal investigation.
Trump appealed U.S. District Judge Beryl Howell’s decision ordering Corcoran to testify and hand over documents, including handwritten notes. The Appeals Court in light speed mode, rejected Trump’s appeal.
Corcoran will be testifying before the grand jury on Friday, CNN reports.
One former top DOJ official, Brandon Van Grack, says the “Special Counsel is about to get access to the most critical evidence in the case. Should allow DOJ to make a charging decision without significant delay.”
He did not define what “without significant delay” means in terms of days, weeks, or months.
Van Grack served at Main Justice for eleven years, including as a lead prosecutor in Special Counsel Robert Mueller’s Russia investigation, and later, as the Chief of the DOJ’s Foreign Agents Registration Act (FARA) Unit.
“The announcement from a panel of three judges in the appeals court – less than a day after Trump sought to put Corcoran’s testimony on hold – adds momentum to the special counsel investigation as it seeks to secure evidence that could make or break a federal criminal case against Trump,” CNN explains. “The Justice Department has successfully argued in court that prosecutors have enough evidence that Trump’s interactions with the lawyer were part of a possible crime that they can pierce the confidentiality of the conversations between the two.”
BREAKING NEWS
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A former top Dept. of Justice official says a federal judge’s expedited ruling ordering an attorney for Donald Trump to testify against his client before a grand jury and hand over documents very well may be related to “national security.”
U.S. District Judge Beryl Howell ruled that DOJ Special Counsel Jack Smith had successfully made the case Donald Trump may have committed a crime, via his attorneys, in his classified documents case. That finding allowed her to invoke the crime-fraud exception, and order Trump attorney Evan Corcoran to testify before the grand jury investigating the ex-president’s unlawful retention and refusal to return hundreds of classified documents.
Former FBI General Counsel Andrew Weissmann, who also worked for Special Counsel Robert Mueller and headed the DOJ’s Criminal Fraud Section, Wednesday afternoon on MSNBC said it’s possible Judge Howell’s expedited decisions were related to national security.
Tuesday night Judge Howell ordered DOJ to provide information by 6:00 AM Wednesday.
Trump appealed Howell’s ruling, and Wednesday afternoon the Appeals Court denied his appeal related to the documents, Politico reports.
“I’ve never seen anything that quick. It’s very hard to know why. I have to say, to me, when I think about what can be a plausible reason– and this is pure speculation – is that there must be something in the papers that gave the judges concern about national security implications, because it’s such a short timeframe.”
“The reason this is a bombshell is you could end up with Evan Corcoran as a key, fundamental witness against Donald Trump in an obstruction of justice case and a false statements case,” Weissmann adds.
According to Politico, Wednesday’s appeals court ruling “effectively permits the Justice Department to circumvent Trump’s attorney-client privilege after a lower-court judge found that the documents likely contain evidence of a crime.”
This article was updated to correctly spell Andrew Weissmann’s last name.
RIGHT WING EXTREMISM
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Donald Trump’s attorneys have appealed a ruling that requires one of his lawyers to testify before a grand jury investigating his unlawful removal, retention, and refusal to return classified documents from the White House.
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Judge Howell “ruled in favor of applying the ‘crime fraud’ exception to Trump’s attorney-client privilege and ordered Trump lawyer Evan Corcoran to testify before the federal grand jury.”
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Trump’s attorneys have already appealed the ruling.
“People familiar with the matter said an appeals panel has already begun reviewing the decision, after Trump’s lawyers appealed,” The Washington Post adds. “The extraordinarily quick timeline suggests that the judges — all nominated by Democratic presidents — intend to rule swiftly.”
Trump could take his case all the way to the Supreme Court, but The Post says it’s “not clear he would have a much better chance of success there.”
According to an NBC News report from October, Corcoran directed another Trump attorney, Christina Bobb, to sign the letter claiming a thorough search of Mar-a-Lago had been made and all classified or “sensitive” documents had been returned. That was proven untrue after federal agents, executing a search warrant, recovered hundreds of documents with classified markings.
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