In Historic Ruling, Tenth Circuit Declares Marriage Equality Bans Unconstitutional

by Ianthe Metzger

The Tenth Circuit’s ruling today represents the broadest appellate court ruling in favor of a constitutional right for same-sex couples to marry


WASHINGTON – Today the U.S. Court of Appeals for the Tenth Circuit issued a historic ruling affirming the December 2013 decision from U.S. District Judge Robert Shelby in Kitchen v. Herbert that the amendment to the Utah Constitution barring marriage for same-sex couples violates the U.S. Constitution.  In a 2-1 decision authored by Judge Lucero on behalf of a three-judge panel, the court agreed with the low court’s ruling in which Judge Shelby wrote that the ban denies “[Utah’s] 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.”

“Today’s decision affirms what we all know to be true – the U.S. Constitution guarantees the basic civil rights of all Americans, not just some,” said Human Rights Campaign (HRC) president Chad Griffin.  “Utah’s ban on marriage equality does nothing to strengthen or protect any marriage.  Instead, it singles out thousands of loving Utah families for unfair treatment simply because of who they are.  Our Constitution does not allow for such blatant discrimination.  We are incredibly grateful to the plaintiffs, their attorneys with Magleby & Greenwood, P.C and the National Center for Lesbian Rights, as well as Utah Unites for Marriage, for their tireless work making today’s historic victory possible.”

The Tenth Circuit’s ruling today represents the broadest appellate court ruling in favor of a constitutional right for same-sex couples to marry.  The court applied strict scrutiny in striking down Utah’s marriage ban, providing the highest level of protection to same-sex couples.

On December 20, 2013, U.S. District Judge Robert Shelby ruled that Utah’s ban on marriage equality is unconstitutional “because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.”  Over the weeks that followed more than 1,300 same-sex couples were legally married in Utah before the U.S. Supreme Court granted a stay pending final disposition of the appeal by Tenth Circuit.  The case was initially filed on March 25, 2013 on behalf of three same-sex couples, one of which was legally married in Iowa but sought for Utah to recognize their marriage.

The Kitchen case in Utah was scheduled for appeal with a similar marriage case –  Bishop v. Smith out of Oklahoma. The appeals on both cases were heard by a three-judge panel of the Tenth Circuit, with Kitchen on April 10, 2014, and Bishop on April 17, 2014.  Judge Paul Kelly Jr. was nominated by President George H.W. Bush and was confirmed to the Tenth Circuit in 1992.  Judge Carlos Lucero was nominated by President Bill Clinton and confirmed to the appeals court in 1995. And Judge Jerome Holmes was nominated by President George W. Bush and confirmed in 2006.  Judge Holmes was one of two judges who denied Utah’s request for a stay on same-sex marriages underway in Utah after a district judge ruled the state’s marriage ban unconstitutional. 

The state now has the option to request an en banc appeal before the full bench of the Tenth Circuit. The Tenth Circuit decides whether or not to grant that request.  If denied, the defendants can also appeal today’s ruling to the U.S. Supreme Court.  They may also bypass an en banc session and appeal directly to the Supreme Court.

There are more than 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico.  Cases from nine other states are currently pending before federal appeals court.  The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. 

Since the Supreme Court’s historic marriage rulings last year not a single state marriage ban has survived a federal court challenge.

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  For more information on this and other marriage equality cases across the country, visit

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.


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