In the first federal appellate level consideration of same-sex marriage since the Supreme Court overturned the Defense of Marriage Act last year, the 10th Circuit has agreed with the lower court that Utah’s ban on same-sex marriage is unconstitutional. In a 2-1 decision, the panel ruled that the Constitution guarantees that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as it is recognized by persons who wish to marry a person of the opposite sex.”
The ruling was immediately stayed, recognizing that the Supreme Court had stayed thedistrict court’s original ruling earlier this year.
From the opinion:
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.and
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. As the district court eloquently explained, “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.” Kitchen, 961 F. Supp. 2d at 1203. 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.