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Same-sex marriage (SSM) in Utah:

Part 16: 2014-MAY/JUN:
Utah Governor criticizes other states
(Cont'd). Apology requested.
3-judge panel of 10th Circuit Court of
Appeals
upholds lower court ruling.

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This topic is continued from the previous essay.

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The acronym "SSM" refers to same-sex marriage;
"LGBT refers to the Lesbian, Gay, Bisexual & Transgender community.

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LGBT symbol 2014-MAY-22: Utah Governor Gary Herbert (R) complains about actions in other states concerning SSMs (Cont'd):

Initially, Governor Herbert differentiated between interracial and same-sex marriages. He said that individuals are free to choose how to handle their sexual orientation, whereas an individual's race is fixed. That is, a gay or lesbian person may choose to be celibate and without an intimate partner for the rest of their life. Alternately, they can seek to develop a loving, dedicated sexual relationship with another person of the same sex.

He said:

"What you choose to do with your sexual orientation is different than what you’re born with as your race."

There appears to be a misunderstanding of what the Governor said. Some interpreted his words as implying that he believed sexual orientation to be a choice. This is still a very widespread belief among religious conservatives.

Asked specifically if he believes that people choose their sexual orientation, or discover it, Herbert said:

"I think it’s unclear. I expect there may be different gradations. Clearly the actions involved in sexual activity ultimately end up being choices. What your attraction may be is something else, but how you act upon those impulses is a choice. But that’s not for me to make that decision." 2

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2014-MAY-23: A LGBT leader asks for an apology by the Governor:

John Netto, who heads the Utah Pride Center board has asked the Governor to apologize. Netto said:

"To suggest that allowing gay marriage is the foundation of anarchy, to us, is hate speech. We think he is uneducated ... on current scientific positions in regard to human sexuality." 3

A month later, we scanned the Internet for some indication that Governor Herbert had apologized for his remarks. Google found many dozens of references to the request for an apology, but none that indicated that an apology was given.

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2014-JUN-05: Stay of the District Court's ruling in "Kitchen et al v. Herbert et al" will continue:

The 10th U.S. Circuit Court of Appeals announced that it will maintain the stay on same-sex marriages until it reaches a decision in the case.

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2014-JUN-25: 3-judge panel of the 10th U.S. Circuit Court of Appeals upholds District Court ruling:

5

In a 2 to 1 ruling, a three judge panel of the 10th U.S. Circuit Court of Appeals in Denver CO affirmed the lower court ruling that was issued on 2013-DEC-20. District Court Judge Robert J. Shelby had found that same-sex couples had a right to marry in Utah. This is the first time that the same-sex marriage question has been decided at the federal Court of Appeals level. Reporter Michael Muskal of the Los Angeles Times suggests that this Circuit Court panel ruling may well influence appeals that are currently underway in other appellate courts.

Their majority ruling states, in part:

"We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of a state’s marital laws. 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.

"For the reasons stated in this opinion, we affirm." 5

They also wrote:

"It is wholly illogical to believe that state recognition of love and commitment of same-sex couples will alter the most intimate and personal decisions of opposite-sex couples." 7

Judge Paul J. Kelly Jr (R) was the sole judge who disagreed with the majority. He believes that a state has the right to decide who is allowed to marry. Apparently, he believes that a state can even define marriage in a way that violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. He wrote:

"We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment."

Clifford Rosky is a law professor at the University of Utah and a board chairperson of Equality Utah -- a pro-marriage equality LGBT group. He said:

"This is the most significant victory in the history of the gay rights movement. A federal appeals court has recognized that same-sex couples enjoy the same freedoms as all [other] Americans — the freedoms to marry, establish a family and raise children together. This is a victory not only for the 1,300 same-sex couples who are married in Utah, but for all gay Americans." 5

Carl Tobias, a professor at the University of Richmond School of Law in Virginia commented:

"The 10th Circuit opinion is very important as the first appeals court to affirm invalidation of a state same-sex ban. The opinion is comprehensive and is likely to influence other appeals courts."

One might claim that it is a victory also for Americans who believe in equal civil rights for all people in the country, not just the LGBT community.

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Reactions to the Court of Appeals' ruling:

The state has the option of accepting the Court's ruling and allowing same-sex couples to marry freely. Otherwise, it is likely to appeal the 3-judge panel's decision to the full Court of Appeals. It would also be possible for the state to appeal the decision directly to the U.S. Supreme Court.

A few hours after the decision was announced, state officials said that they plan to appeal the case all the way to the U.S. Supreme Court! That would be a risky undertaking for the government Utah. The state is predominately Mormon -- followers of a very conservative Christian denomination with very strong beliefs against marriage equality. There have been a dozen federal and state court rulings on the legality of same-sex marriage to date; all have upheld the right of same-sex couples to marry. If the state of Utah were to appeal the case to the U.S. Supreme Court and the right of such couples to marry was upheld, then Utah, and its Mormons, would be forever known as the state and faith group that played a major part in legalizing same-sex marriage, That is probably a reputation that the state and The Church of Jesus Christ of Latter-day Saints would prefer to not have. On the other hand, if the case is appealed to the full Court of Appeals, and is upheld by the full court, and if the state does not appeal it to the U.S. Supreme Court, then marriage of same-sex couples will become available in Utah and perhaps in other states that this Court of Appeals has jurisdiction over. That is not an attractive option for most Mormons.

Governor Gary R. Herbert (R) said at a news conference:

"I’m disappointed because I believe states do have a right, through the democratic process, to define marriage."

He does see a positive result of the ruling which is probably shared by much of the country. It pushes the conflict one step closer to the U.S. Supreme Court. which would:

"... bring some finality to this, which is what all people, on all sides of the issue should want — which is what I want."

Brian Brown is president of the National Organization for Marriage, a non-profit group whose sole goal is the prohibition of marriage by same-sex couples everywhere in the U.S. He said:

"While we strongly disagree with the two judges in the majority, we are encouraged by the strong defense of marriage articulated by Justice Paul Kelly in his dissent, and especially his defense of the sovereign right of the people of Utah to decide this issue for themselves." 5

Amy Fowler married her wife during the short interval that marriages were available to same-sex couples. She said that she was close to shedding tears of joy after learning of the appeals court ruling. She said:

"It's amazing,. I'm reading the opinion right now and I think we certainly hoped for it and maybe expected it a little bit — but this is incredible. ... We have to wait a little longer to see what happens next but this is a step in the right direction. We're one step closer to actually being really married. It’s exciting." 6

Derek Kitchen, the lead plaintiff said he was:

"... overjoyed. Since the lawsuit was filed last year, we have received so much support from so many people in our state, and we are now looking forward to the day when we will finally be married." 6

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This is currently a very active topic.
Further developments are certain to materialize.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Marissa Lang, "Judge: Utah must honor same-sex marriages performed during 17-day window," The Salt Lake Tribune, 2014-MAY-19, at: http://www.sltrib.com
  2. Robert Gehrke, "Herbert says states have a duty to defend gay-marriage bans," Salt Lake Tribune, 2014-MAY-24, at: http://www.sltrib.com/
  3. Lindsay Whitehurst and Marissa Lang. "LGBT leader calls for apology over Utah governor’s comments," The Salt Lake Tribune, 2014-MAY-23, at: http://www.sltrib.com/
  4. Kim Trobee, "Utah Same-sex marriage on hold," Citizenlink, 2014-JAN-06, at: http://www.citizenlink.com/
  5. Michael Muskal, "Federal court rules against Utah ban on same-sex marriage," Los Angeles Times, 2014-JUN-25, at: http://www.latimes.com/
  6. Pete Williams & Tracy Connor, "Federal Appeals Court Strikes Down Utah's Same-Sex Marriage Ban," NBC News, 2014-JUN-25, at: http://www.nbcnews.com/
  7. Scott Neuman, "Federal Judges Reverse Gay-Marriage Bans In Utah, Indiana," National Public Radio, 2014-JUN-25, at: http://www.npr.org/

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Home > Religious info. > Basic > Marriage > SSM > SSM sub menu > Utah > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-FEB
Latest update: 2014-JUN-25
Author: B.A. Robinson

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