Tenth Circuit affirms freedom-of-marriage

[Bob78164]

According to published reports (I haven't yet read the decision myself), the Tenth Circuit has become the first Federal Court of Appeals to broadly rule that laws forbidding same-sex marriage are unconstitutional. The Tenth Circuit covers much of the Mountain West, but extends to the southeast as far as Oklahoma. --Bob

[elwoodblues]

I would hate to be the one who has to try to come up with a valid legal argument for excluding a certain group from the rights the rest of us have.

[jarnon]

I would hate to be the one who has to try to come up with a valid legal argument for excluding a certain group from the rights the rest of us have.

I'm no lawyer, but I looked at the decision. The majority opinion said that the Utah ban denies same-sex couples "the equal protection of the laws." Even the dissenting judge didn't say the Utah government was right. But he said the Supreme Court ruled in 1972 (!) against same-sex marriage, and only the Supreme Court can change that precedent.

That got me thinking, who had the balls to try to marry another man over 40 years ago? As I remember, most people back then didn't even think homosexuals had civil rights. It was an activist named Jack Baker, who was decades ahead of his time.

In another case, the Supreme Court affirmed today that laws have to change with the times. They ruled unanimously that police need a warrant to search an arrested suspect's smart phone. They recognized that today's phones contain everyone's private information, which the 4th Amendment was written to protect. I hope they apply the same good sense to the same-sex marriage question.

[SportsFan68]

We're in the 10th Circuit. Does this decision automatically render Colorado's Amendment 43 invalid? Here's Colorado's current status on banning same-gender marriage but permitting civil unions. Thanks to http://www.colorado-family-law.com/book/export/html/65

Colorado Same-Sex Marriage Developments

In 2006, Colorado voters passed, by 55-45, Amendment 43, which added a new section 31 to Article II of the Colorado Constitution, reading: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

C.R.S. 14-2-104(1)(b) similarly prohibits same-sex marriages between gay or lesbian couples, by specifying that a marriage is between one man and one woman.

There have been several attempts in recent years to create additional protections for same-sex couples, starting in 2006. The same year voters defined marriage as a male/female union, they defeated, by a narrower 53% to 47%, a ballot initiative which would have authorized domestic partnerships (a precursor to civil unions, but much more limited).

In 2009, the legislature enacted the Colorado Designated Beneficiary Act which, like a power of attorney, would effectively let a couple contract to hold property jointly, make end-of-life decisions, etc. Notably absent from this first step, however, is the right to be covered by health insurance, owing obligations to the other (such as maintenance), and therefore, a dissolution process to end such a contract. For more information, see Designated Beneficiary Agreements in the Colorado Divorce & Family Law Guide.

Until 2013, a couple with an out-of-state civil union or same-sex marriage could not dissolve their relationship in Colorado, because C.R.S. 14-2-104(2) does not recognize a valid a same-sex marriage performed outside of Colorado. However, with the enactment of the civil union statute, such marriages are treated as civil unions here, and may be dissolved under Colorado’s Uniform Dissolution of Marriage Act. For more information, see the Dissolving a Civil Union article in the Colorado Divorce & Family Law Guide.

In May 2012, a bill to establish civil unions in Colorado in 2012 died on procedural grounds, even though it had majority support in the Colorado legislature. Finally in 2013, Colorado passed the Colorado Civil Union Act which gives same-sex couples most of the rights of a married couple under state law (except for joint tax filings), but no federal rights thanks to current federal law.

In 2013, Colorado finally enacted the Colorado Civil Union Act, which creates civil unions and grants to same-sex partners most, but not all, of the rights of married couples. For more information, see the Colorado Civil Unions article in the Colorado Divorce & Family Law Guide.

[Bob78164]

We're in the 10th Circuit. Does this decision automatically render Colorado's Amendment 43 invalid?

No, primarily because the Tenth Circuit stayed its decision until the disposition of any Petition for a Writ of Certiorari that may be filed with the Supreme Court. But it's stare decisis within the Tenth Circuit, so any Colorado federal district court considering the question will be bound by the Tenth Circuit's ruling. --Bob

[BackInTex]

I would hate to be the one who has to try to come up with a valid legal argument for excluding a certain group from the rights the rest of us have.

Felons the right to buy and carry concealed handguns.
Pedophiles the right to go visit their child at the elementary school.
Non-citizen the right to vote
Men the right to use a public women's restrooms
Blind people the right to drive

Why do I have to do everything?

[elwoodblues]

I would hate to be the one who has to try to come up with a valid legal argument for excluding a certain group from the rights the rest of us have.

Felons the right to buy and carry concealed handguns.
Pedophiles the right to go visit their child at the elementary school.
Non-citizen the right to vote
Men the right to use a public women's restrooms
Blind people the right to drive

Why do I have to do everything?

Do you really equate same-sex marriage with those things? This is not a matter of public safety or anything like that. The only reason for telling gay people they cannot marry the person they want to marry, with the legal rights that go with it, is prejudice. That is why every state that has laws against it is losing in court.

At one time it was illegal for interracial couples to marry. As public attitudes shifted, the laws changed accordingly. That is what is happening with gay marriage.

[BackInTex]

The only reason for telling gay people they cannot marry the person they want to marry, with the legal rights that go with it, is prejudice.

And the only reason for telling a man he cannot marry two women (or two men) is.....?


It is not prejudice. It is simply a differing opinion of what is right or wrong, moral or immoral, and whether one thinks the government should sanction it.

[Bob78164]

The only reason for telling gay people they cannot marry the person they want to marry, with the legal rights that go with it, is prejudice.

And the only reason for telling a man he cannot marry two women (or two men) is.....?


It is not prejudice. It is simply a differing opinion of what is right or wrong, moral or immoral, and whether one thinks the government should sanction it.

Polyamorous relationships create significantly more complex issues with respect to things such as property rights than do monogamous relationships.

The courts are (correctly, in my view) coming down pretty firmly on the side of those who believe that a view on morality is not a constitutionally acceptable reason to interfere with a right as fundamental as the right to marriage. --Bob

[jarnon]

The Supreme Court decided today that it won't consider appeals in this and other same sex marriage cases, so same sex marriage is now legal in Utah and some other states.

[silverscreenselect]

The Supreme Court decided today that it won't consider appeals in this and other same sex marriage cases, so same sex marriage is now legal in Utah and some other states.

My guess is that the Court is waiting for the "right" case, which may occur if and when some circuit rules against same sex marriage and they pretty much have to take up the issue.

[SportsFan68]

SportsFan68 wrote:

We're in the 10th Circuit. Does this decision automatically render Colorado's Amendment 43 invalid?

Bob #### replied:

No, primarily because the Tenth Circuit stayed its decision until the disposition of any Petition for a Writ of Certiorari that may be filed with the Supreme Court. But it's stare decisis within the Tenth Circuit, so any Colorado federal district court considering the question will be bound by the Tenth Circuit's ruling. --Bob

Jarnon wrote:

The Supreme Court decided today that it won't consider appeals in this and other same sex marriage cases, so same sex marriage is now legal in Utah and some other states.

It looks like same gender marriage in Colorado is now legal because of the 10th Circuit ruling. Here are a couple of excerpts from a USA Today article:

"The unexpected decision by the justices, announced without further explanation, immediately affects five states in which federal appeals courts had struck down bans against gay marriage: Virginia, Indiana, Wisconsin, Oklahoma and Utah.

It also will bring along six other states located in the judicial circuits overseen by those appellate courts: North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming. Lower court judges in those states must abide by their appeals court rulings."

. . .

"Most court-watchers had predicted the justices would hear one or more cases this term and issue a verdict with nationwide implications by next June. But the justices, perhaps sensing that the country is headed toward legalizing gay marriage without their involvement, chose to deny states' appeals."

[Bob Juch]

The Supreme Court decided today that it won't consider appeals in this and other same sex marriage cases, so same sex marriage is now legal in Utah and some other states.

My guess is that the Court is waiting for the "right" case, which may occur if and when some circuit rules against same sex marriage and they pretty much have to take up the issue.

Exactly.

[silverscreenselect]

I would hate to be the one who has to try to come up with a valid legal argument for excluding a certain group from the rights the rest of us have.

Felons the right to buy and carry concealed handguns.
Pedophiles the right to go visit their child at the elementary school.
Non-citizen the right to vote
Men the right to use a public women's restrooms
Blind people the right to drive

Why do I have to do everything?

When the government distinguishes among groups based on non-suspect method of classification, such as by what size businesses have to comply with various laws, it may do so as long as there's a rational basis for its decision, even if some other method of classification might arguably have been better. But when the government distinguishes on the basis of a suspect classification such as race, sex, or religion, it has to have a compelling reason to do so. At one time, people could not marry people of other races in a number of southern states because it "offended" a lot of folks. Those laws were ruled unconstitutional 50 years ago. There's no more compelling reason to deny people the right to marry by the reason of sex.

Denying people the right to marry because of sex is a fundamentally different matter than denying them the right to a bigamous marriage. In the latter case, the government is making a decision about limiting the benefits of a special type of contract that confers a unique set of legal, property, and other rights on the parties to a union of exactly two people, not three or more. Since there's a rational basis to distinguish among legal marriages between two people and those among three or more, states can distinguish on that basis.

[silverscreenselect]

It is not prejudice. It is simply a differing opinion of what is right or wrong, moral or immoral, and whether one thinks the government should sanction it.

So, if enough people think it's immoral for black people or women to vote or own property, then you're okay with that?

[BackInTex]

It is not prejudice. It is simply a differing opinion of what is right or wrong, moral or immoral, and whether one thinks the government should sanction it.

So, if enough people think it's immoral for black people or women to vote or own property, then you're okay with that?

What does my quote have to do with your (incomplete) question?

[silverscreenselect]

It is not prejudice. It is simply a differing opinion of what is right or wrong, moral or immoral, and whether one thinks the government should sanction it.

So, if enough people think it's immoral for black people or women to vote or own property, then you're okay with that?

What does my quote have to do with your (incomplete) question?

Well, then why do you feel it's all right for the government to sanction a marriage between a man and a woman but not between two men or two women?

And would that same reasoning apply to sanctioning a marriage between two white people or two black people but not between a black person and a white person?

And would that same reasoning apply to prohibiting black people or women from voting or owning property (which insofar as women are concerned is the law in a number of countries)?