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Graeme

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Utah ban on same-sex marriage nullified

The Tenth Circuit is the first at the appeals court level to rule on the current wave of federal court decisions to strke down same-sex marriage bans. They do so with a two-to-one decision.

“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,” Circuit Judge Carlos F. Lucero wrote for the two-judge Tenth Circuit majority. He was joined by Circuit Judge Jerome A. Holmes. Circuit Judge Paul J. Kelly, Jr., dissented, arguing that the Supreme Court had settled the issue against same-sex marriage as long ago as 1972.
The opinion went on to recognize a right to marry as a fundamental right under the Fourteenth Amendment, and ruled that access to marriage cannot be denied to same-sex couples. That right, the opinion said, focused on “the freedom to choose one’s spouse.”

Beyond an equal right to enter marriage, the ruling said, the Constitution provides the right to “remain married,” thus nullifying Utah’s refusal to recognize same-sex marriages that were performed outside the state for Utah couples.

Unfortunately, the ruling doesn't take effect immediately:

The Tenth Circuit noted that, after a federal trial judge had struck down the Utah ban, the Supreme Court had put that ruling on hold. So, the Tenth Circuit said, it was postponing the effective date of its ruling until after the Supreme Court has a chance to consider any appeal by state officials. If such an appeal is not filed, or if it is filed and rejected, its ruling would then go into effect, it said. If the Supreme Court agreed to take on the case, the stay would remain in effect until a decision emerged.
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The decision is being appealed to the Supreme Court, so we'll have to wait to see what happens there. The Supreme Court has (I believe) only one more day to review potential new cases (26th June) before they take a break, and this one probably won't be discussed at that conference (not enough time for preparation). I'm not sure when they'll start considering new cases again.

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