Last Wednesday, the Tenth Circuit Court of Appeals in Denver became the first federal appeals court to rule that same-sex couples have a constitutional right to marry. Kitchen v. Herbert (10th Cir. 2014). Several lower courts have made similar decisions, but this decision brings the issue of same-sex marriage closer to U.S. Supreme Court review.
The decision struck down Utah’s gay marriage ban, holding states cannot deprive people of the fundamental right to marry simply because they choose a partner of the same-sex. This ruling covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. However, the Tenth Circuit immediately put its ruling on hold pending appeal to the U.S. Supreme Court.
Legal challenges to state same-sex marriage bans have flowed from the Supreme Court’s Windsor decision in June last year, striking down the section of the federal Defense of Marriage Act prohibiting legally married same sex couples from receiving federal benefits. The Kitchen decision is significant because it rules on the broader constitutional question of whether states can deny gays the ability to marry.
Following the decision, the Boulder County, Colorado, clerk began issuing marriage licenses to gay couples because the decision would void Colorado’s same-sex marriage ban if it stands. Colorado’s Attorney General John Suthers said these marriages are not valid because the state’s constitutional prohibition on same-sex marriages remains in effect.
It is unknown when the Tenth Circuit will issue a decision in the similar case before it challenging Oklahoma’s same-sex marriage ban. Bishop v. United States (N.D. Okla. 2014). There are five other federal appellate court cases pending on this issue. It is unclear which case will be the first to reach the Supreme Court as all are likely to be appealed, and the Court can choose among them. In addition, two Colorado district courts will rule on cases challenging Colorado’s same-sex marriage ban directly. Brinkman v. Long and McDaniel-Miccio v. State of Colorado.
Legalization of same-sex marriage has a major effect on many employee benefits. MSEC will keep you informed of further developments.