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Divided Federal Appeals Court Strikes Down Utah's Marriage Law

Divided Federal Appeals Court Strikes Down Utah's Marriage Law

In a 2-to-1 decision, the U.S. Court of Appeals for the Tenth Circuit in Kitchen v. Hebert affirmed a lower court’s ruling holding that traditional marriage laws violate the Constitution. The case will likely soon go to the U.S. Supreme Court.

Breitbart News examined this case last year when an Obama-appointed federal judge in the U.S. District Court for the District of Utah invalidated that state’s law providing that marriage is the union of one man and one woman, comparing such laws to racism and saying they are literally irrational.

Despite the fact that neither marriage nor homosexuality is mentioned in the U.S. Constitution, the appeals court majority concluded that the Constitution includes a fundamental right to marry a person of the same sex.

The court added that there is no constitutional right to polygamy, but did so without explaining its rationale separating the two non-traditional types of marriage. One week before the district court struck down Utah’s man-woman marriage law, a different federal judge in Utah struck down that state’s law criminalizing marriage to more than one person.

The Denver-based appeals court is presumably aware that the polygamy case, Brown v. Herbert, is likely to come before the Tenth Circuit appellate court in this next year. That case involves the multi-person marriage of Kody Brown and his four wives, from the reality-TV series “Sister Wives.”

Judge Paul Kelly dissented from the appeals court majority’s decision that there is a fundamental right to redefine marriage to include same-sex couples, writing that the Utah law “should be analyzed under traditional equal protection analysis and upheld as rationally related to (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.”

Kelly goes on to write:

Same-sex marriage presents a highly emotional and important question of public policy–but not a difficult question of constitutional law, at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Supreme Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender. Indeed, the Court has been less than solicitous of plural marriages or polygamy.

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….

The State of Utah can now ask the full Tenth Circuit to set aside the three-judge panel’s decision and rehear the case with all the court’s judges in an en banc sitting, or Utah could now petition the U.S. Supreme Court to take the case.

Ken Klukowski is senior legal analyst for Breitbart News and a fellow at the American Civil Rights Union. Follow him on Twitter @kenklukowski.

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