Do same-sex couples have right to wed? Appeals court hears first post-DOMA case.

A potential landmark case from Utah testing whether same-sex couples enjoy a constitutional right to marry arrives Thursday before a federal appeals court panel in Denver.

Rick Bowmer/AP
Tiffany Lundeen, a supporter of gay marriage, wears a flag during a rally at the Utah State Capitol, Tuesday, Jan. 28, 2014, in Salt Lake City.

A potential landmark case testing whether same-sex couples enjoy a constitutional right to marry arrives Thursday before a three-judge panel of the federal appeals court in Denver.

The question of same-sex marriage has divided the country, and the issue is inevitably headed to the US Supreme Court, perhaps as early as next year.

Currently, 17 states and the District of Columbia recognize same-sex marriages. In contrast, 33 states restrict marriage to one man and one woman through bans enacted by statute or constitutional amendment.

Thursday’s hour-long argument at the Tenth US Circuit Court of Appeals in Denver involves a challenge to a 2004 constitutional amendment in Utah banning gay marriage. It won 66 percent of the vote.

On Dec. 20, US District Judge Robert Shelby declared the Utah amendment unconstitutional. His was the first such ruling since the Supreme Court struck down the federal Defense of Marriage Act (DOMA) in a landmark decision last June.

“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,” he ruled.

Judge Shelby said the state had no justifiable reason to treat same-sex couples differently than heterosexual couples in Utah. And the judge went substantially further. He declared that the US Constitution itself requires that Utah allow same-sex couples to marry.

If upheld by the Tenth Circuit and then the US Supreme Court, Judge Shelby’s decision would mean that every same-sex marriage restriction and ban across the country must fall.

Since the Utah decision, federal judges in Oklahoma, Texas, Virginia, Michigan, and Ohio have issued nearly identical rulings that same-sex marriage bans in those states violate a fundamental right to marry protected by the US Constitution. All are under appeal.

In addition to hearing the Utah case Thursday, the same three-judge panel on the Tenth Circuit is set to hear an Oklahoma marriage case on April 17. The other four appeals are also underway in the Fourth, Fifth, and Sixth Circuits.

These cases are only the tip of a litigation iceberg involving nearly 60 lawsuits filed in state and federal courts in 27 states and Puerto Rico challenging same-sex marriage bans.

This inundation tactic is part of a national strategy by gay rights groups to flood the country with cases and build a sense of momentum and inevitability for national recognition of same-sex marriage and gay rights.

Many states and traditional marriage groups are fighting back, hoping to preserve the status quo view of marriage in their own states. They argue that the Supreme Court has not yet ruled on the issue and that it is premature for federal judges and appeals courts to opine on a US constitutional right to same-sex marriage.

Supporters of the traditional definition of marriage also say that states are entitled to restrict marriage to male-female unions as long as their citizens and elected representatives deem them acceptable and appropriate.

These supporters say that if, or when, states embrace broader definitions of marriage it should come about through debate, public campaigns, and popular votes, rather than being imposed by unelected federal judges.

At its most basic, the Utah case is a fundamental test of who gets to decide how the same-sex marriage debate is to be resolved. Will it be decided by judges and justices, or by the states and voters?

Gay rights advocates insist that the right to marry is a fundamental right that all citizens enjoy. They are not asking for creation of a new constitutional right, just a broader application of the existing right, they say.

Lawyers for Utah counter that there is no fundamental right to same-sex marriage. They say regulation of marriage is within the traditional authority of each state to decide. Under principles of federalism, the national government has no business imposing its view in areas reserved to the states.

Rather than trying to impose a solution through the courts, they say, allowing the issue to proceed on a state-by-state basis through democratic means is more likely to result in compromise and accommodation.

“Public opinion is apparently in flux,” Washington appellate lawyer Gene Schaerr wrote in his brief to the Tenth Circuit on behalf of Utah.

“No one knows what the ultimate outcome will be, either nationally or in any given state. But the fact that different states have thus far chosen different paths is not a sign of political weakness; it is a sign of a healthy and diverse national republic,” he wrote.

The constitutional structure of government is designed in part to foster experimentation and democratic participation within the states during times of rapid social change, Mr. Schaerr said. The federal judge’s decision in Utah, if affirmed, would bring that activity to a “screeching halt,” he said.

Federal imposition of a one-size-fits-all solution, the lawyer said, would alter the balance of power between the states and the national government.

Schaerr said that such an approach would “destroy any opportunity for the kind of democratic compromise and accommodation that could otherwise ultimately produce, in each state, a peaceful and relatively harmonious resolution of what is now, in many places, a highly contentious issue.”

“The state respectfully asks this court to allow the people of Utah to choose for themselves how to strike the proper balance,” Schaerr said in his brief to the Tenth Circuit.

Lawyers for same-sex couples in Utah counter that principles of federalism do not exempt states from the requirement that they uphold the constitutional rights of their citizens.

A state’s power to legislate, adjudicate, and administer all aspects of family law are subject to scrutiny by the federal judiciary, they say.

“Even when regulating in areas that are properly subject to their regulatory authority, states must respect fundamental constitutional rights,” Kathryn Kendell of the National Center for Lesbian Rights wrote in her brief to the Tenth Circuit.

“Indeed, the entire purpose of the Fourteenth Amendment is to prohibit states from exercising their traditional authority in ways that deprive their citizens of liberties guaranteed by the federal Constitution,” she added.

Ms. Kendell quoted Judge Shelby as having correctly framed the question: “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.”

Much of this posturing is based on a few paragraphs written by Justice Anthony Kennedy in last summer’s Supreme Court decision in US v. Windsor invalidating DOMA.

In that case, the court ruled 5 to 4 that the federal government had improperly intruded into the state’s traditional authority to regulate marriage. At issue was the fact that same-sex couples who had legally married in their home states were nonetheless barred under DOMA from receiving the same federal benefits as opposite-sex spouses.

The court said the federal government had to respect the decisions of the states in conferring equal status and dignity to same-sex married couples.

But what the court did not do is decide the larger, more basic question of whether same-sex couples have a right under the US Constitution to marry or whether that is a decision to be left to each state to determine.

That hasn’t stopped federal judges and lawyers on both sides of the issue from drawing from portions of Justice Kennedy’s decision in the Windsor case to support their legal arguments.

Now the task falls to a three-judge appeals court panel in Denver to assess and judge their work.

The case is Kitchen v. Herbert (13-4178).

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