Two States See Victories on Same-Sex Marriage: Will They Last?

Source: Thinkstock

Source: Thinkstock

Wednesday saw two major victories for LGBTQ rights with a federal court of appeals ruling in Utah upholding the end of its same-sex marriage ban, and Indiana seeing its own marriage ban overturned by a federal judge. The cases settle appeals within the state but could still be subject to appeal in the Supreme Court. At present, there are nineteen other states that legally allow same-sex marriage, including California, Connecticut, Oregon, and New York, with Utah and Indiana making it twenty-one. Still awaiting appeal results are ten states according to Freedom to Marry, including Idaho, Arkansas, Tennessee, Texas, Viginia, Wisconsin, Kentucky, Michigan, Ohio, and Oklahoma.


Utah saw a lower court ruling upheld in the 10th Circuit Court of Appeals panel. According to The Wall Street Journal, this marks the first ruling at that court level, with the 10th Circuit Court falling just under the Supreme Court. The case was brought a year ago by three couples based on the argument that the marriage ban in Utah prevented all state residents from equally enjoying due process and equal protection.

The ruling was held by Judge Carlos Lucero and Judge Jerome Holmes, with Judge Paul Joseph Kelly dissenting. The majority sought to answer the a question “left open” by United States v. Windsor — which struck down the federal Defense of Marriage Act — asking “May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?”

In answer, the court ruled that “consistent with the United States Constitution, the State of Utah may not do so,” going on to outline its application to couples such as Derek Kitchen and Moudi Sbeity who have been in a relationship for years and own a business together. In dealing with more specific issues, they addressed the item of same-sex parenting, stating that while they consider the State’s discussion of heterosexual couple parenting versus same-sex parents as “compelling,” they say that science is “inconclusive” and as such “on strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day.”

For his party, Judge Kelly concluded that “there is no such fundamental right” forcing the state to utilize strict scrutiny, and claiming while “same-sex marriage presents a highly emotional and important question of public policy,” it does not constitute a complex quandary “at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage.”


Indiana, too, saw progress towards same-sex marriage in the state. In fact, the first same-sex couple to be married in Indianapolis received their marriage license earlier today, so congratulations are in order for Craig Bowen and Jake Miller, who have been together for eight years. The Indiana attorney general office gave a statement saying that it would be appealing the ruling, according to The Associated Press, which reports that the U.S. District Judge Richard Young has said in the interim that, “Same-sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”

Judge Young’s ruling states in its conclusion that, “The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions — laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional.” While Young points out a pattern, his state will be conforming to the norm in another way as well — with the prolongation of the issue via an appeal. This will potentially force those couples wishing to marry to wait additional time while the case is retried as it has been in other states.

Some states have chosen to place a freeze on such rulings going into effect so as to avoid confusion or a period of limbo for those couples who marry between the ruling and appeal. This was the case in Michigan where some 300 same-sex couples found themselves in  a strange sort of marital limbo until an announcement from Attorney General Eric Holder clear up the confusion, saying that the marriages would be recognized by the federal government, though states rights were left out. No freeze on marriage allowance has been seen with Indiana, at least not yet, as is apparent from the Marion County Clerk who tweeted the following:

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