In a case that could have a direct impact on Kansas, a federal appeals court in Denver ruled Wednesday that same-sex couples have a constitutional right to marry.
A three-judge panel of the 10th U.S. Circuit Court of Appeals ruled that a constitutional amendment enacted in Utah that bans same-sex marriage violates the equal protection clause of the U.S. Constitution's 14th amendment. But the court stayed its order pending a likely appeal to the U.S. Supreme Court.
"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," the court said. "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."
In 2004, voters in Utah approved a constitutional amendment that defines marriage as a legal union between a man and a woman. It also says, "No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect."
The following year, Kansas adopted its own marriage amendment, with language substantially similar to Utah's.
Wednesday's decision was the first by a federal appeals court to uphold the right of same-sex couples to marry.
Attorney General Derek Schmidt said he would continue to defend the Kansas ban on same-sex marriage.
“We are aware of the panel’s decision,” Schmidt said in a statement released late Wednesday. “The Court has stayed its ruling pending
further litigation. It is clear this will not be the last word on the subject, and we will continue to meet our duty to defend against legal challenges to the provision Kansas voters included in the state constitution.”
The case involved three same-sex couples in Utah — one involving two men; the others involving two women each. Each couple had applied for a marriage license at the Salt Lake County Clerk's office, but they were denied because they intended to marry people of the same sex.
In a 65-page opinion that is sweeping in its language, the 10th Circuit said, "Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages."
The 2-1 decision was written by Judges Carlos Lucero and Jerome Holmes. Judge Paul Kelly, Jr., dissented in part, saying states should reserve authority to define marriage themselves.
"If the States are the laboratories of democracy, requiring every state to recognize same-gender unions - contrary to the views of its electorate and representatives - turns the notion of a limited national government on its head," Kelly wrote.
Thomas Witt, chairman of Equality Kansas, the leading gay rights group in the state, praised the ruling, while acknowledging that the court's stay prevented for now same-sex marriage in Kansas.
"It would be nice to be able to race to the courthouse and get married right now, but that day is getting closer," Witt said. "If the 10th hadn't stayed their ruling, we probably would've seen same-sex couples going for marriage licenses this afternoon."
But Rev. Terry Fox, of Wichita, one of the leaders of the movement to put a same-sex marriage ban in the Kansas Constitution, said he was troubled by the court's decision.
"We're holding out hope that the Supreme Court will honor what the people have said," Fox said.
Voters in Kansas approved the constitutional amendment banning same-sex marriage in 2005 by a 69 percent to 31 percent margin. Fox said he was confident that voters in Kansas would still approve such a ban by a similar margin.
He said the 10th Circuit's ruling "was a huge overreach." He said a Supreme Court decision outlawing same-sex marriage bans "would open door to polygamy."
The U.S. Supreme Court has not directly addressed the issue of state recognition of same-sex marriage.
Last year, in the case United States vs. Windsor, it struck down a portion of the federal Defense of Marriage Act, which prohibited the federal government from recognizing same-sex unions, even if they were legal in the state or country in which they were performed.
But that opinion did not address another provision of the federal law, which gives states the authority not to recognize such marriages.
Kansas Rep. Tim Huelskamp, who represents western Kansas, issued a statement condemning the decision.
“With this decision, two radical judges on the 10th Circuit Court of Appeals have far exceeded their constitutional authority," Huelskamp said. "Contrary to a clear ruling of the U.S. Supreme Court in United States v. Windsor, these two lawyers invented a brand new constitutional ‘right’ and overruled the express opinion of nearly three million American voters and their elected representatives."