The battle to legalize same-sex marriage saw a historic victory this week when the United States Court of Appeals for the 10th Circuit in Denver became the first federal appeals court in the nation to declare that same-sex couples have a “fundamental right” to wed.
The decision, striking down Utah’s ban on same-sex marriage, extended a remarkable string of favorable federal court rulings; a similar ruling was issued on the same day by a Federal District Court in Indiana. The decision also provides a vehicle for the issue’s possible return to the Supreme Court next term.
“To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so,” Judge Carlos Lucero, a Clinton appointee, wrote in a majority opinion in the Utah case, joined by Judge Jerome Holmes, a George W. Bush appointee. “One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.”
The opinion affirmed a lower court’s decision in December that resulted in more than 1,000 same-sex marriages in Utah before the Supreme Court issued a stay.
All in all, this has been a year of extraordinary progress on same-sex marriage. Almost exactly a year ago, the Supreme Court left standing a lower-court ruling overturning Proposition 8, California’s ban on same-sex marriage; that case has given rise in recent weeks to two books and an HBO movie.
But the prime factor behind the explosion of lawsuits challenging state bans, as well as the many court rulings rejecting discrimination in both red and blue states, is United States v. Windsor — the Supreme Court’s landmark ruling striking down the Defense of Marriage Act’s denial of federal benefits to lawfully married same-sex couples. The 10th Circuit decision in the Utah case included many references to the Defense of Marriage Act ruling.
Utah’s attorney general, Sean Reyes, has said he intends to appeal the ruling to the Supreme Court.
Decisions on same-sex marriage are expected in coming months from other federal appeals courts as well, with the soonest perhaps from the United States Court of Appeals for the Fourth Circuit in Virginia.
Yet the Supreme Court need not — and should not — wait for every appeals court to act or for a conflict to emerge among different circuits to revisit the same-sex marriage question and provide a definitive ruling making marriage equality the law of the land.