At least 100 gay and lesbian couples have already wed in Salt Lake County, rushing to the clerk’s office upon the news that a federal judge had struck down Utah’s voter-approved ban on gay marriage.
Whether marriage licenses can continue to be issued while the judge’s ruling is appealed is the matter now before the US 10th Circuit Court of Appeals. State officials on Friday night asked both the district judge and the appeals court for a temporary emergency stay. State officials say the judge in the case, US District Judge Robert Shelby, has indicated it will be several days before he considers the request. The appeals court, however, could act at any time.
Utah is the most politically conservative state yet to see the advent of gay marriage within its borders. The “purple” states of Iowa and Maine both allow same-sex couples the full rights of matrimony, and New Jersey, where Republican Chris Christie was just overwhelmingly reelected governor, was required by its high court to end its ban as of Oct. 21. The other 14 states (plus the District of Columbia) where gay marriage is legal are part of “blue” America – a sign of the stark political divide on the gay marriage issue.
It’s already clear that Utah officials will not surrender the state’s same-sex marriage ban without a fight. The ban, in the form of a state constitutional amendment, was approved in 2004 by two-thirds of Utah voters – and Gov. Gary Herbert (R) in a statement on Friday expressed his disappointment that “an activist federal judge is attempting to override the will of the people of Utah.”
The 10th Circuit Court, which will ultimately hear the state’s appeal to Judge Shelby’s ruling, currently has 10 active judges – five nominated by Republican presidents and five by Democratic presidents, including Chief Justice Mary Beck Briscoe. It also has 10 senior judges who take lighter caseloads – six appointed by Republicans and four by Democrats.
Utah’s attorney general, in a statement Friday, criticized Shelby's ruling, noting that its finsing that same-sex marriage is a fundamental right "has never been established in any previous case in the 10th Circuit.”
In June, however, the US Supreme Court did strike down key parts of the federal Defense of Marriage Act (DOMA), saying the 1996 law deprived gay couples of “equal liberty” and “equal dignity.” But it did not assert that the US Constitution guarantees gay couples a right to marry.
Judge Shelby, named to the federal bench by President Obama, appeared to make that case in his ruling Friday, writing that the right to marry is protected by the US Constitution.
‘‘These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being,’’ his decision said. His 53-page ruling in effect overturns Utah’s ban on grounds that it violates same-sex couples’ rights to due process and equal protection under the 14th Amendment.
The state, for its part, had argued during a hearing before Shelby earlier this month that the ban is justified because it advances Utah’s interest in “responsible procreation” and the “optimal mode of child-rearing,” according to an Associated Press report. Moreover, state officials said at the time, it’s not up to courts to decide how a state defines marriage – and it noted that the US Supreme Court has not said that same-sex couples have a universal right to wed.
As of Friday night, the inevitable legal wrangling that is to come did not dampen the spirits of gay Utah couples who took this first opportunity to share their vows. Among them was state Sen. Jim Dabakis, chairman of the Utah Democratic Party, and his longtime partner, Stephen Justesen. They were married by Salt Lake City Mayor Ralph Becker, who at the ceremony noted that "Today, Judge Shelby has given a great gift," The Deseret News reported.
The county clerk’s office in Salt Lake stayed open several hours after the usual closing time to process marriage licenses for couples who had rushed there after hearing the news that the ban was lifted – at least for now.