June 27, 2014 at 1:00 am

Same-sex marriage evolves toward High Court review

Michael Foster, second left, and Larry Foster, right, hug their 3 children as the couple married Thursday in Indianapolis after a federal judge struck down Indiana's ban on same-sex marriage. (Michael Conroy / AP)

Denver— 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 a string of 17 straight rulings, judges have argued the high court’s decision in U.S. vs Windsor means just that: States cannot get in the way of gay couples who want to marry.

The most significant of those findings came Wednesday when the 10th U.S. Circuit Court of Appeals in Denver became the first appellate court to weigh in post-Windsor and upheld a ruling that found Utah’s gay marriage ban was unconstitutional.

That decision increases pressure on the high 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 be the one that makes it there. Five other appellate courts are considering similar cases, and the Supreme Court could take any of them.

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.

“I don’t know if the Supreme Court is going to wait for a circuit split as long as it usually does,” said Nancy Leong, a law professor at the University of Denver, noting 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.

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.

“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry,” Judge Carlos Lucero wrote for the majority.

But Judge Paul Kelly argued in his dissent that the 10th Circuit overstepped its authority.

John Eastman of the National Organization for Marriage argued the dissent increases the likelihood the Supreme Court will weigh in. Eastman, a law professor at Chapman University in Southern California, said he doubts there are five votes on the high court “to impose marriage on the 30-some states that don’t have it now.”

On the eve of the last year’s Windsor ruling, 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.