That was on display in Colorado on Wednesday afternoon, when the county clerk in the liberal city of Boulder announced she would issue same-sex marriage licenses even though the 10th Circuit — which along with Colorado and Utah includes, Kansas, New Mexico, Oklahoma and Wyoming — stayed its decision pending appeal. The state’s attorney general declared the licenses invalid because Colorado‘s gay marriage prohibition is still the law, but Clerk and Recorder Hillary Hall said she would continue to issue them until stopped by a court.
Wednesday’s ruling stressed the urgency of overturning gay marriage bans rather than waiting for new laws to be written by elected officials. “Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry,” Justice Carlos Lucero wrote for the majority. “We may not deny them relief based on a mere preference that their arguments be settled elsewhere.”
But Justice Paul Kelly argued in his dissent that the 10th Circuit overstepped its authority and that states should be able to decide who can marry.
“We should resist the temptation to become philosopher-kings, imposing our views under the guise of the 14th Amendment,” Kelly wrote.
The ruling came down just minutes after a federal judge threw out that Indiana’s same-sex marriage ban in a decision that immediately allows gay couples to wed. But the legal significance of the 10th Circuit ruling is far greater because it is one level higher on the legal food chain.
In 2012, an appellate court struck down California’s gay marriage ban but said it was only ruling on that law, not the broader constitutional questions. There were no such caveats in Wednesday’s 65-page decision.
Article continues belowEvan Wolfson, president of Freedom to Marry, said Utah’s legal victory was sweeter because of where it originated — a conservative, deeply religious state in the heart of the mountain West.
“What is so powerful here is that we have the first federal appellate court and … it’s a case coming out of Utah affirming in the strongest, clearest, boldest terms that the Constitution guarantees the freedom to marry and equal protection for all Americans and all means all, including gay couples,” he said.
The Church of Jesus Christ of Latter-day Saints, based in Salt Lake City, said it maintains marriage should be between a man and a woman, but believes “all people should be treated with respect.”
Tony Perkins, president of the Family Research Council, issued a statement saying judges were treading on dangerous ground by moving so fast.
“The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants,” Perkins said.
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