10th Circuit decision could impact Utah marriage recognition case

By Marjorie Cortez, Deseret News

Published: Thu, June 26, 2014, 6:10 p.m. MDT

 People listen during a rally to celebrate the 10th Circuit Court of Appeals' decision that overturned Utah's ban on same-sex marriage at City Creek Park in Salt Lake City on Wednesday, June 25, 2014.

People listen during a rally to celebrate the 10th Circuit Court of Appeals' decision that overturned Utah's ban on same-sex marriage at City Creek Park in Salt Lake City on Wednesday, June 25, 2014.

(Michelle Tessier, Deseret News)

SALT LAKE CITY — Attorneys for four same-sex couples in Utah seeking recognition of their marriages said the 10th Circuit Court's ruling on Amendment 3 gives them "hope" for a successful outcome in their case.

"It definitely does have a lot of very helpful language and does give us a lot of hope that Evans will be met with success based on the outcome and decision in Kitchen," said John Mejia, legal director of the ACLU of Utah.

A three-member panel of the 10th Circuit Court of Appeals on Wednesday upheld a lower court ruling that struck down the state's ban on same-sex marriage under the voter-approved Amendment 3 to the Utah Constitution. It was the first time an appellate court has ruled on the issue.

The court ruled in that case, Kitchen v. Herbert, that voter-approved Amendment 3, which defined marriage in Utah as between a man and a woman, violated same-sex couples' equal protection and due process rights.

Supreme Court blogger Lyle Denniston said he believes the 10th Circuit Court of Appeals will act quickly on the marriage recognition case, Evans v. Utah, filed by four same-sex couples who were married between Dec. 20 and Jan 6, the period between U.S. District Judge Robert J. Shelby's ruling that struck down Amendment 3 and a stay of the ruling issued by the U.S. Supreme Court.

The state declined to recognize the marriages, and the couples decided to sue. In May, U.S. District Judge Dale A. Kimball ordered Utah to recognize the marriages and grant benefits to about 1,300 couples married during that window. The state has appealed the decision to the 10th Circuit Court of Appeals, which issued a stay in the matter. The case has not yet been assigned to a panel of appellate judges.

"I think in view on what they did on the merits yesterday, there is no chance that recognition of those marriages is forbidden because half of the ruling yesterday was on recognition rather than on initial right to marry," Denniston, a journalist who has covered the Supreme Court for 56 years, said Thursday.

Wednesday's ruling was a 2-1 decision. Tenth Circuit Judge Paul Kelly disagreed with his colleagues on marriage recognition. In his dissent, Kelly wrote that a state should not be compelled to recognize same-sex marriage "to the extent there is no right to same-gender marriage emanating from the 14th Amendment."

The Utah Attorney General's Office declined to speculate about what Wednesday's decision means regarding the Evans case, said Missy Larsen, spokeswoman for the Utah Attorney General's Office.

Mejia also would not speculate on how the 10th Circuit will handle the marriage recognition case but said, "I do think Kitchen has a lot of very encouraging language for Evans, but you can never guarantee an outcome."

The court's opinion in the Kitchen case states: "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."

Denniston said the court essentially said that "if you’re already married, you have you have a right of recognition. So that’s all that’s at issue in this window of opportunity series of marriages" in the Evans case.

"I would expect very soon we would get another order or another opinion from the 10th Circuit resolving that piece finally," Denniston said.

Email: marjorie@deseretnews.com

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1. USU-Logan
Logan, UT,
June 26, 2014

10th circuit will definitely rule in 1300+ same sex couples' favor, all they need to do is to look California, those SSM performed before Prop. 8 are recognized, even with Prop 8 in book, aren't they?

2. Kirk R Graves
West Jordan, UT,
June 26, 2014

If we assume that words only have meaning because they can be defined, and that the definitions of words are only valid within the context (time, place, intent) they are used, then before we can understand any communication we must first understand the definitions of the words used in that communication.

The primary argument in support of SSM is the 14th amendment. This amendment in itself isn't enough to support SSM however. You must also bring in a number of SC rulings which state that Marriage is a right protected by the 14th.

Now we get to the crux of the matter. You see, in every dictionary I could find, up to the last 20 years or so, the word Marriage is quite clear to include the concept of opposite genders. Even a very current online legal dictionary I looked up used the same language.

So, if the rulings which are being used to support SSM were given by Judges who intended their words to have specific meanings, and if those meanings can be decoded by the dictionaries in effect at the time of the ruling, those ruling actually support Traditional Marriage, and argue against SSM.

3. Stormwalker
Cleveland , OH,
June 26, 2014

@Kirk R Graves

Every year committees and editorial boards for various leading dictionaries meet to discuss new words to be added, and word meanings to be amended or added to. Dictionaries follow and reflect society, they do not set the meaning of society.

So, in the next round of updates, you will begin to see the definition of marriage being amended to reflect the current use of the word in society.

If dictionaries were static things that dictated to society, we would all sound like a Shakespeare play and a whole lot of technology and activity would not be able to exist because we would not have words to describe it.

4. Hutterite
American Fork, UT,
June 26, 2014

This cat has nearly gotten entirely out of the bag.

5. 10CC
Bountiful, UT,
June 26, 2014

Kirk R Graves:

Words have meanings, but those meanings often evolve through time:

"Awful" used to mean "full of awe".

"Gay" used to mean "happy"

"Egregious" used to mean "remarkably good".

"Nice" used to mean "foolish, senseless"

"Villain" used to mean "peasant"

Some socially acceptable terms & definitions from the Bible are not used at all today, they've become socially unacceptable. Example: "Concubine"

Evolution in word definition is nothing new.

Sometimes words are completely made up from scratch, such as "contraband", which is a legal term coined by a Union general named Benjamin Butler to describe slaves who defected to the north. Ordinarily, the property rights of slave holders would have been honored, but Butler decided these escaped slaves, if returned to their owners, might potentially be used in warfare against his men, so he coined a new term and let the slaves stay in Union territory.