DENVER (AP) — When the U.S Supreme Court struck down the federal Defense of Marriage Act exactly one year ago, it stopped short of saying states cannot ban gay marriage.
But in 17 straight rulings, judges have argued the high court’s ruling means just that: States cannot get in the way of gay couples who want to marry.
The most significant of those decisions came Wednesday when the 10th U.S. Circuit Court of Appeals became the first appellate court to find that last year’s decision means states cannot deny gays the right to marry. It upheld a ruling that found Utah’s gay marriage ban was unconstitutional.
That decision increases pressure on the Supreme Court to make explicit what it did not say last year — that gay couples nationwide have a right to marry.
“This tees it up for possible Supreme Court review,” said William Eskridge, a law professor at Yale University. “When a federal appeals court strikes down a major state law, there is a lot more pressure for the justices to take that.”
Utah is considering an appeal to the Supreme Court, but there is no guarantee its case will make it to the top court. Five other appellate courts are considering similar cases, and the Supreme Court could take any of those.
The soonest the high court could decide a gay marriage case is 2015, but it often waits for a split in appellate courts before considering an issue.
Nancy Leong, a law professor at the University of Denver, noted the recent judicial unanimity on the issue could make that a long wait. Meanwhile, she said, countless gay couples are eager to marry and less and less tolerant of the slow pace of the courts.
That was on display in Colorado on Thursday, when the county clerk in the liberal city of Boulder issued same-sex marriage licenses even though the 10th Circuit panel stayed its decision pending an appeal. Along with Utah, the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma and Wyoming.
Colorado’s attorney general declared the licenses invalid because the state’s gay marriage prohibition is still the law. But Clerk and Recorder Hillary Hall said she would continue issuing them until a court stops her.
Wednesday’s ruling stressed the urgency of overturning gay marriage bans rather than waiting for elected officials to write new laws.
On the eve of last year’s ruling, Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer, seen as sympathetic to gay rights, talked about the importance of not having the court get too far ahead of the country in ruling on major social issues. They were speaking about abortion, in Ginsburg’s case, and interracial marriage, in Breyer’s case.
But the pace of change has been so swift with gay marriage — as Ginsburg has publicly noted — that there may no longer be a reluctance among some justices to deal with it.
Same-sex marriage is now legal in 19 states and the Washington capital district, and recent polls show a majority of Americans — including President Barack Obama — support it.
Tony Perkins, president of the Family Research Council, issued a statement saying judges were treading on dangerous ground by moving so fast.
“The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants,” Perkins said.
McCombs reported from Salt Lake City. Associated Press writers Mark Sherman in Washington, Michelle Price in Salt Lake City, Lisa Leff in San Francisco and Kristi Eaton in Oklahoma City contributed to this report.
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