10th Circuit Court rules Utah’s same-sex marriage ban unconstitutional

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SALT LAKE CITY -- A federal appeals court has ruled Amendment 3, Utah's ban on same-sex marriage, is unconstitutional.

In a 2-1 decision handed down on Wednesday, the 10th U.S. Circuit Court of Appeals set the stage for the case to decide same-sex marriage nationwide.

"We hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny," the judges wrote.

Read the ruling by the 10th U.S. Circuit Court of Appeals here:


"The United States Constitution, the Fourteenth Amendment, applies to all of us with equal force, no matter what your sexual orientation," said Peggy Tomsic, the lawyer for the couples who sued over Amendment 3.

In its ruling, the 10th U.S. Circuit Court did not allow same-sex marriages to resume. The appeals court granted a stay pending an appeal by the state of Utah to the U.S. Supreme Court.

Amendment 3, which defines marriage as only between a man and a woman and does not recognize anything else, passed in 2004 with 66% of the vote.

Amendment 3 plaintiffs Derek Kitchen, Moudi Sbeity, Laurie Wood and Kody Partridge

Amendment 3 plaintiffs Derek Kitchen, Moudi Sbeity, Laurie Wood and Kody Partridge

Three couples -- Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; Laurie Wood and Kody Partridge -- sued saying it violated their rights to equal protection and due process.

In interviews with FOX 13 on Wednesday, the couples were elated.

"We just got one of the most significant decisions from an appeals court ever!" said Derek Kitchen.

"Historic!" his partner, Moudi Sbeity, interjected.

Kate Call, who married her wife, Karen Archer, in Iowa, said she believes in short time, the 10th Circuit opinion would stand.

"This love deserves to be honored. It is just as sacred as any other love. It's

Amendment 3 plaintiff Kate Call in an interview with FOX 13.

Amendment 3 plaintiff Kate Call in an interview with FOX 13.

beautiful, it's sweet and it's meant to be sanctified in a marriage. I'm so proud," Call told FOX 13.

In a statement, Utah Attorney General Sean Reyes said his office was reviewing the decision and options for appeal, including whether to seek an "en banc" review from the full 10th Circuit Court. But in comments Wednesday afternoon, Governor Gary Herbert said he wanted to take the case to the U.S. Supreme Court.

"I'm disappointed because I do believe that states have the right through the democratic process to make the determination on the definition of marriage," the governor told reporters. "Our people have spoken on that issue. That's part of our law. That being said, the sooner we can get to the Supreme Court, the better I would like it."

Governor Gary Herbert makes a statement on the Amendment 3 ruling by the 10th U.S. Circuit Court of Appeals

Governor Gary Herbert makes a statement on the Amendment 3 ruling by the 10th U.S. Circuit Court of Appeals

The governor again called the original decision to allow same-sex marriage in Utah "chaos" and told FOX 13 he would spend additional money if needed to fight the rulings.

"I don't know what the cost will be to fund that effort, but I expect again, it's money well spent on behalf of people on all sides of this issue," Herbert said. "Everybody wants to know what is the answer to the question."

Tomsic urged the state to drop its appeal.

"If they want to end this chaos, they need to not appeal this decision," she said.

On Dec. 20, 2013, U.S. District Court Judge Robert Shelby overturned Amendment 3, ruling it violated gay and lesbian couples' rights under the U.S. Constitution. The decision was a shock -- the state hadn't even sought a pre-emptive stay -- and gay couples flooded county clerk's offices to seek marriage licenses.

For 17 days, more than 1,200 same-sex couples wed in Utah as the attorney general's office sought an emergency stay to halt the marriages. The U.S. Supreme Court finally intervened, granting a stay pending the appeal through the 10th U.S. Circuit Court of Appeals.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

In arguments before the 10th Circuit Court, Utah said maintaining a traditional definition of marriage was the will of voters and it would preserve a view that "fathers and mothers are important."

Tomsic argued that Amendment 3 discriminates -- treating same-sex couples and their families as "second-class citizens" and demeaning them as humans.

The judges from the 10th Circuit grilled the lawyers in oral arguments about interracial marriage bans in the 1960s, discrimination, state's rights, the will of the people and constitutional rights.

Utah Attorney General Sean Reyes has refused to say his personal views on same-sex marriage, arguing that he has an obligation to defend the law passed by Utah voters.

Call told FOX 13 that she considers it a "lovely irony" if Utah -- where polygamy was once practiced by state founders -- were the case to decide same-sex marriage for the nation.

"It's apropos that we would be the carriers and pioneers of marriage for the entire United States," she said.

Click here to read or download dozens of documents related to the Amendment 3 case.


  • Trish Ramirez

    Well, there you have it. The Supreme Court isn’t going to take this on – they got their fill of these types of cases last year. The LGBT community has won, and congratulations to them :)

      • Trish Ramirez

        I’m already married. My advocacy for LGBT marriage has nothing to do with my personal rights and everything to do with believing that everyone should be entitled to the same family security that I have, regardless of whom they love and have built a life with. Namaste.

    • trollololol

      Ummmm yes they will take the case. You are ignorant if you believe it will stop here. This was voted 2:1… And with the recent affirmative action ruling the Supreme Court made, this may get interesting.
      There are more conservative than liberal justices in the Supreme Court… Just saying.

      • Trish Ramirez

        The Supreme Court hears only about 1% of all submitted appeals every year. Having already ruled on this matter only ONE year ago, I virtually guarantee they are going to consider this NEW appeal a waste of their time. They have made their stance clear. They defer to the judgement of the individual state courts. The highest court in the state of Utah said that the ban on LGBT marriages is Unconstitutional and therefore illegal. Utah has LOST this battle. Yet our lawmakers continue to waste time and money fighting this battle in order to placate ignorant potential voters like yourself.

    • Patriot

      Regarding the unlawful and illegal actions taken and those of the same gender who think they are married in Utah: Do not premeditate the calculations of the juvenile poultry until the proper process of incubation has materlized. Most who have posted for illegal marriages will say : “Duh, dude, whited they say?”

      • Trish Ramirez

        What unlawful and illegal actions (and was the redundancy really necessary??) are you referring to? All of the same gender marriages that were performed in this state were done in accordance with the law at the time. You call yourself ‘patriot’ while demanding that the government meddle in the private affairs of US citizens in a way that has been deemed by the highest court in the State to be Unconstitutional? Does the irony escape you? I think you are very close to finding out how wrong you are, here in a couple of months when it is announced that the Supreme Court has REFUSED to hear this case, as it is virtually identical to one heard last year. The Supreme Court has already ruled that the issue of LGBT marriage is to be decided by each STATE. The highest court in the state of Utah has determined that Utah’s ban on same gender Marriage is a violation of the civil rights of same gender couples. The Supreme Court has made their stance on this issue clear. There is nothing left to say.

      • Trish Ramirez

        Pete, these ‘patriots’ don’t hate the Constitution, they don’t UNDERSTAND the Constitution. In some cases they lack the capacity for truly understanding it, but in most it is more a matter of not WANTING to understand it accurately, because the truth and reality of the Constitution of this nation conflict with their most deeply held beliefs. There are still people, educated people, out there who believe that this nation was founded on one religion or another, when nothing could be further from the truth. This nation was founded to be above religion, to be truly secular, and the manipulations of high-powered, well-funded religious organizations to turn it into some kind of theocracy are a slap in the face of every man who signed our Declaration of Independence.

  • Southside Sam

    Great!!! I also have a horse, a truck and a really sexy cactus plant that I want to marry next. I can’t wait!!! I truly love my horse, my truck and have extremely fond and emotional feelings for my cactus plant. No man should be able to stop me since now it is all about love…

      • Gunner Miller

        I love how they go to extremes and mention trucks, and cactus. It is childish, but a necessary evil that allows others to see the level of discourse from the anti-marriage equality side.


        I am still an advocate or rights!
        Need I say again I do believe that even Jesus/ God would NOT have taught hate!
        This is about EQUAL RIGHTS Regardless!! Wake up smell the coffee and direct
        your energy to something positive, and do the right thing

      • Mr Mackey

        Eric Cartman Anderson, Mmmkay,
        Did you change your profile name again?
        EQUALITY in your face Eric.

      • MR MACKEY

        Yes, I’ve changed it dozens of times.

        I’m all for equality. I don’t care if gays “marry.” They’ve always married, when they chose to, and anyone who chose to recognize the marriages did so. That will not change.

        What I object to is the government grabbing authority over something that doesn’t have anything to do with government. The solution is simple: Get the “m-word” off of ALL government documents. Instead, recognize Civil Unions. (Financial contracts that SHOULD be equally available to all adult citizens, as I’ve always said.) Let society decide who is or is not “married.” (Which it will do anyway.)

        Everyone equal. Government out of business where it doesn’t belong. THAT is what I’ve said, using all my login names. In your face, liberal.

      • Patriot

        Mr Mackey, You are correct. “Let society decide who is or is not “married.”

        We have! As has our representatives in Congress in the Defense of Marriage Act. As have almost all states and religions, US and Middle Eastern.

      • Jimbo

        All laws are subject to court interpretation, and always have been. It’s difficult to imagine how a “benefit” can be granted to just certain adult citizens, based on their sexual orientation, and not others. That’s why I say the easiest way to protect “traditional marriage” from the government is to simply remove the “m-word” from the documents. Adult citizens SHOULD be able to enter into financial contracts with each other as they please, with no consideration of what body parts they have in their pants. And that’s the ONLY aspect of marriage that should be in the government’s domain.

        If the government doesn’t recognize ANY “marriage”, as such, then no one is discriminated against. At the same time, adults SHOULD be able to designate heirs and share financial benefits (and liabilities) as they see fit.

        The mistake was in putting “marriage” in the hands of the government in the first place.

      • Patriot

        The saints who followed Jesus did not hate homosexuals while he taught the Gospel. They just followed His teachings in the Law of Moses and….. Well, it’s written in the Good Book. Check it out.

      • Jimbo

        Whenever anyone appeals to the Law of Moses I always ask how many goats they’ve sacrificed today.

        Or do you just pick and choose the bits you like?

        Appealing to the Old Testament is a slippery slope.

      • Patriot

        Sorry, can’t tell you about the goats as the humane society and other alphabet soup groups will be after us Christians. :-)

    • Mr. Man

      yeah dude you need someone with a ummm “brain” that can write and sign a legal document. Please keep sound stupid. your comment isn’t hurting anyone besides yourself by sounding idiotic. lol

    • Bob - Eastside

      Southside Sam of course you are from the south side – I see guys on the southside making love to their trucks all the time.A horse on the other hand…and cactus plant …ouch!

  • Edward

    I have a solution to the problem. Let us pass a law that marriage is a union between two people of any gender that have the ability to procreate without the help of anything artificial and unnatural. Let’s see them get around that.

    • Gizzo

      Edward, procreation is not a requirement for getting married. It never has been. Even requiring the “ability” to procreate isolates elderly and infertile couples from getting married.

    • kevin jk

      that would keep the infertile young couple in my ward from marrying and also a number of others who (re)married later in life past the woman’s child bearing years. My daughter and her husband had to use IVF to conceive. I guess they’d be out too.

      The ruling is just. The Bible and D&C forbid using our religious opinions to infringe upon the rights and liberties of others. Freedom, liberty and the scriptures won out today.

      • Trish Ramirez

        Is that really the stance you are going to take? The church has been pretty clear that they believe that marriage should be between one man and one woman, and despite what it says in the D&C about not using religious opinions to infringe upon the rights and liberties of others, the church certainly has spent a pretty penny messing with Prop 8 in California and trying to sway the minds and hearts of voters in Utah.

        Oh well, this church and its members are really great at always coming up smelling like roses, despite their bigotry

        What an awesome PR department and sense of self-delusion.

        Either way, it’s a good day for the LGBT community – but please be honest with your church’s stance on this issue.

      • MR MACKEY

        You speak hate, Trish. Every opinion you have on every subject is derived from your bitter hatred of “Mormons” and “cops.” You are incapable of disagreeing with anyone without hating them.

      • Stan

        Who is “you people”, Trish? You’re assuming that the world consists exclusively of Mormons and People Who Hate Mormons. 99.9% of humans belong to another category altogether. I’m an atheist.

      • Patriot

        Trisha, thought you had nothing left to say per your diatribe above. Great thing is that when use wake up this morning and smell use coffee, use and your alphabet soup group are still single! :-)
        BTW, we are taking our rainbow back that your group stole!

    • Davey

      So that would make it illegal for people with fertility problems to get married. I don’t think that’s quite the catch all that it seems to be in your mind.

  • DrivesMeCrazy

    Great now we have to hear this over and over and over again on the news. Sick of it! Don’t agree one bit – Sick people.

    • Gizzo

      Then turn off the news, don’t go on internet, and avoid conversations pertaining to the subject. If you can’t do that, maybe it’s your attitude that’s the problem.

    • Davey

      Don’t elect politicians who pass unconstitutional laws and you won’t have to hear about them being overturned on the news.

      • Patriot

        Do not premeditate the calculations of the juvenile poultry until the proper process of incubation has materlized. Most who have posted will say : “Duh, dude, whited they say?”

    • Cari

      Nope, doesn’t affect you at all. Never did. If you are straight, you have always had the right to marry who you want. I never have. Now I actually do. You can’t imagine what it’s like to not have the same rights as everyone else, until you have some right of yours taken away.

  • John

    Congratulations to all! This renews my faith in what our founding fathers intended to protect all people and not what a popular vote or religious bias may influence. Well done! On a side note, I foresee a class action civil suit if the state continues to spend our tax dollars for personal agendas vs. constitutional law.
    I have no problem if they want to spends millions of their own private and tithing money to fight against human rights. Using public money for personal gain is was the last two AG’s are still being prosecuted for.

    • Patriot

      Founding Fathers? Why go check the graveyards at Dodge City. Not much tolerance for that idea and was not needed. That’s why all them there old houses didn’t need closets. Hmmm

      • Trish Ramirez

        The Founding Fathers also OWNED other human beings as slaves.
        Our society has evolved in many positive ways since this nation was founded.
        As human beings, we have learned to be tolerant and to treat other human beings with the respect and dignity we expect to be treated with.

      • Jimbo

        A few of the Founding Fathers were slave owners. It’s typically liberal of you to assume they all were. The northern colonies didn’t allow slavery. John Adams was a Quaker, for crying out loud.

        Stop trying to re-write history to suit your hatred of white males, Trish.

      • Trish Ramirez

        I certainly didn’t say they ALL did, and you’re missing the point. The point is that our society has evolved considerably since the late 1700’s. We have made social changes that are good for ALL people, not just a select few.

  • Oscar Michealson

    Correct me if I’m wrong, but aren’t civil issues supposed to be adjudicated? I hear a lot of arguments about consensus (on various sources) but I don’t recall civil rights or women’s rights rulings ever being about the general consensus on a state or national level – they didn’t seem to be very popular to begin with. If those issues of the past were left to a popular vote at the state or federal level, would things have changed as quickly as they did? I’m open for any kind of answer.

  • Cindy

    This is an obamination to God and my Belief in him this Gay and Lesbian ism is a choice of life and I am so discusted with men and women whom chose this lifestyle! Gods laws were one man and one women and the nation and the laws should not contridict God as he created here and he gave us the right to live here and we took an oath that we would honor him not Man;s law but God’s law! and I don’t care if you crtisize me or not I have that right of belief and choice accorinding to you all the first amendment gives me that right!

    • kevin jk

      Well, according to 2 Sam. 12:7-12, God approves of polygamy giving David all of those wives and then offering them all to one man due to David’s sin. Other people’s gods don’t believe in what you believe. Which version of God wins out? America / Utah isn’t a theocracy. All people have equal rights and putting subjective restrictions on people without objective justification, primarily to advance a religious belief is against God and the Constitution.

    • Lab Ninja

      Congratulations, You’re just like one of the Pharisees. Jesus loved the Pharisees, didn’t he?

    • BAAL-SG1

      Freedom of religion gives a person the right to believe in ANY of the many gods. But it doesn’t give anyone the right to deny freedoms to any person based on religious beliefs. Show me proof that homosexuality is a life choice? Show me proof it is NOT a life choice?We have proof of diferent life on thos planet that have natural homosexuality. Besides, if religion is a life choice, why can’t homosexuality be as well? One of the many reasons we have freedom and rights in this country.

      • Patriot

        Because Mormons follow the prophets! And the Prophet Ezra Taft Benson said “Homosexuality is a perversion and it is wrong.” God said it, our Prophet revealed it for our time and we believe it!” Live your life as you will but don’t come here from other states and try to push your illogical and unnatural beliefs on us or our children. We love you but will not stand idly by looking on while our state and nation are destroyed!

      • Trish Ramirez

        “The so-called civil rights movement as it exists today is used as a Communist program for revolution in America.”
        – Prophet Ezra Taft Benson, Civil Rights: Tool of Communist Deception, 1968, p. 3
        Yeah, your prophet didn’t believe in equal rights for African Americans, either. He was as wrong then as you are now.

      • Jimbo

        He was right. And nothing has been more destructive to blacks than the “Civil Rights Movement” as it exists today.

      • Patriot

        Triah, when the alphabet soup group is loosing the game, they play the race card. Nice try. The African American community is on to your con-game and has rejected your life style. :-)

  • Wayner

    This bigotry stuff is getting very expensive for Utahans…..Lotsa happy lawyers……..Lotsa hungry kids……


    growing up in Ogden I remember That blacks and other races were treated as second class citizens too, Time to end the HATE!

    • Patriot

      Nice try Joseph. African Americans realize your “communities” unnatural ideas will lead to the end of their race and their families. Your group tried the race card in California on Prop 8. The great majority of African Americans in liberal California voted against the homosexual agenda and for Proposition 8. Sam playing the race card against Utahn’s will not work!! All Christians are welcome here! Check out the vote in California. It was over 66% of the African Americans voted for Prop 8. It is even higher in all of the states that have enacted laws and parts of their Constitution for Traditional Marriage is ONLY between a real man and a real woman!

      • Trish Ramirez

        Traditional marriage? You mean traditional MORMON marriage, which was between one man and several ‘women’ (if you consider a 13 year old female child a woman) until very recently, or traditional biblical marriage, which was between one man and one woman, unless of course her husband were to die – at which point she should lay with his brothers until she bore a son of their lineage.
        Why don’t you just come out and admit to your hatred of all things that are different?
        Don’t try to pretend that all things traditional are great or wonderful or that change isn’t sometimes the best thing for a society.

      • Jimbo

        Trish is apparently an Elf. Because she considers 1890 to be “recently.” And I have no idea where she got “13 year olds” from.

        At its height only a small percentage of Mormon men had plural wives, and they had to be specifically “called” by the Church to do so. Perhaps on Trish’s home planet there is a 2:1 ratio of female babies to male babies, but on OUR planet it’s 1:1. It’s not mathematically possible for “all the Mormons” to be polygamists.

  • Mick14513

    If the homosexual community thinks that they’re doing the right thing…..fine. If you all disappear from ultimate remembrance, fine. My only question to those of us who don’t is – How can any heterosexual justify (to themselves) endorse a behavior THEY would not engage in?


    I’ve also said, repeatedly, that the Utah Constitution was amended by Utah voters. The Utah Constitution trumps State courts. The Executive Branch has an obligation, by oath, to uphold and defend that Constitution. They have no moral, ethical or legal authority to simply say, “Oh, forget it.” They MUST see it through to the court of last resort, which is the U.S. Supreme Court. Regardless of a person’s opinion on this specific subject it would be pretty foolish to wish for a Chief Executive or Attorney General who ignores the Constitution, violates his oath, and does as he pleases.


    Do you ever notice that the most hateful persons hiding something about themselves because they can not come to accept others so they hide their phobias by lashing out at others

  • missy

    The Lds church is just pissed off .Because if they had it their way , they would control Everything in Utah. Meaning they would to away with a lot lot of things are wrong , and they would make sure the State of Utah would be Lds standards only. But I stand behind the Glbt . Every one should have the right to marry who u want to be marry to.

  • Kapz

    No matter what the world accepts, I have the free agency to decide what I believe is right for me and my family. I, believe in marriage between a man and a woman. However, I also believe we should love everyone no matter their choices because that’s their free agency.

Comments are closed.

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