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Federal Court Rules Against Utah's Ban On Gay Marriage


This is MORNING EDITION from NPR News. Good morning from member station WLRN in Miami. I'm David Greene.


And I'm Steve Inskeep. As soon as next year, the United States Supreme Court could be asked to rule on gay marriage. The court could review a ruling by a federal appeals court. That court struck down Utah's ban on gay marriage. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Yale law professor William Eskridge, who's written extensively about same-sex marriage, puts it this way.

WILLIAM ESKRIDGE: It's the beginning of the march to the Supreme Court.

TOTENBERG: The beginning because until now, no Court of Appeals had ruled on the issue, and lower court decisions cannot be appealed directly to the Supreme Court. All roads to the high court go through the appellate courts. The 10th Circuit decision came in a case challenging the Utah ban on same-sex marriage, but it applies to the other five states in the circuit as well - New Mexico, Wyoming, Colorado, Kansas and Oklahoma.

Utah officials said they'll appeal and want a quick resolution of the question. That suggests they plan to go directly to the Supreme Court and will not ask for a rehearing by all the judges on the appeals court. Yesterday's decision, as is typical, was rendered by a three-judge panel. The vote was 2 to 1. Judge Carlos Lucero, a Clinton appointee, was joined by George W. Bush appointee Jerome Holmes in the majority. Dissenting was Judge Paul Kelly, appointed by the first President Bush.

As the legal machinations progress, same-sex marriage will remain illegal in Utah because the appeals court blocked its own ruling from going into effect pending appeal. In the coming weeks and months, other appeals courts will issue decisions in gay marriage cases in other parts of the country. The Supreme Court may well wait until it has more than one case on its doorstep before it decides to resolve the issue. Professor Eskridge.

ESKRIDGE: Well, they need to move deliberately. When a petition for review is made to the court, there's no time schedule for them. They can simply sit on it and wait for other positions and then maybe have several in front of them before they make the decision, we're going to take this case; we're going to take that case.

TOTENBERG: Last year, the Supreme Court struck down the federal Defense of Marriage Act, which barred tax, Social Security and other federal benefits to legally married, same-sex couples. In the wake of that decision, 14 district courts have struck down gay marriage bans in various states, the most recent coming yesterday, in Indiana. The majority decision in the 10th Circuit pointed to more than a dozen Supreme Court decisions, over time, declaring that marriage is a fundamental right. Judge Lucero, the opinion author, framed the ruling as analogous to the Supreme Court's 1967 decision, striking down state laws that banned interracial marriage. Fundamental rights are not matters for opinion polls or the ballot box, he said. Bottom line, the court said a state may not deny the issuance of a marriage license to two persons or refuse to recognize their out-of-state marriage based solely on the sex of the two partners. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.