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Protesters called for marriage equality outside the federal courthouse in Denver during oral arguments in April. / David Zalubowski, AP

A federal appeals court in Denver ruled Wednesday that gays and lesbians have a constitutional right to marry, moving the issue a giant step closer to a return engagement at the Supreme Court.

The 2-1 ruling by a three-judge panel striking down Utah's ban on same-sex marriage represents the first appellate ruling since the Supreme Court last year declared a portion of the federal Defense of Marriage Act unconstitutional.

The 10th Circuit appeals court includes Utah, Colorado, Kansas, Oklahoma and Wyoming, as well as New Mexico, where same-sex couples already can marry. Its precedent applies to all those states, but the panel blocked its ruling from taking effect pending appeal, and Utah's attorney general said he intended to seek Supreme Court review.

The decision, which upheld a federal district court verdict from December, is likely to be just one of many ultimately appealed to the Supreme Court. Last year's ruling by the high court granting federal recognition to same-sex marriages unleashed a string of 20 lower court rulings striking down state bans against gay marriage. The panel's 65-page ruling referred to that United States v. Windsor decision 37 times.

"We hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex," the panel ruled.

It held that Utah's constitutional amendment must be held up to heightened scrutiny, a standard that means its alleged justifications must require the prohibition. But it found those justifications - from procreation to parenting skills - wanting.

"If appellants cannot tell us with any degree of confidence that they believe opposite-sex parenting produces better outcomes on the whole - and they evidently cannot - they fail to justify this palpable harm that the Supreme Court has unequivocally condemned," the court said.

The decision was written by Judge Carlos Lucero, who was named to the appeals court by Bill Clinton, with Judge Jerome Holmes, a George W. Bush nominee, agreeing. Judge Paul Kelly, who was named by George H.W. Bush, dissented - becoming the first judge in the past 18 months to come down against same-sex marriage.

"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," Kelly said. "We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment."

Despite the appeals court stay, the Boulder County Clerk's Office in Colorado began issuing marriage licenses to same-sex couples Wednesday after learning of the ruling.

"Couples across Colorado have been waiting a long time to have their right to marry the person they love recognized," said Hillary Hall, Boulder County clerk and recorder. "I want to act immediately to let them carry out that wish."

The Colorado Attorney General's Office said the licenses will be invalid, as they were in 1975 when the Boulder County clerk issued a marriage license to two men.

At the 10th Circuit U.S. Court of Appeals, the same three-judge panel heard Oklahoma's appeal of a similar federal district court ruling a week after Utah's appeal in April, so its decision in that case is expected soon. And a three-judge panel in Virginia heard another appeal in May.

Other appellate court cases involving marriage bans in Idaho, Kentucky, Michigan, Nevada, Ohio and Tennessee will be argued in August and September. Appeals also are pending from Arkansas, Texas and Wisconsin.

The Supreme Court will have its choice of which case to consider, perhaps as early as the 2014 term beginning in October. It could choose a case involving an outright ban on same-sex marriage or one merely involving a state's refusal to recognize a marriage performed in another state.

The high court ruled a year ago in June that the federal government must recognize legal same-sex marriages, and it cleared the way for California to become the 13th state where gays and lesbians could marry. Since then, six other states legalized gay marriages by legislative action or court order - New Jersey, New Mexico, Illinois, Hawaii and, most recently, Pennsylvania and Oregon.

More than 70 lawsuits are pending in all 31 states that still have prohibitions. Some raise specific issues such as divorce or death benefits.

The six plaintiffs in the Utah case include Laurie Wood and Kody Partridge, who were among more than 1,000 couples married in Utah before the Supreme Court put District Judge Robert Shelby's ruling on hold; Derek Kitchen and Moudi Sbeity, who have yet to marry; and Karen Archer and Kate Call, who want their Iowa marriage recognized in Utah.

Hundreds of couples in Arkansas, Michigan and Wisconsin also married in the days after lower court decisions, leaving them in the same marital no-man's land as those married in Utah. In other states, district court judges blocked their own rulings from taking effect during the appeals process.

The last court decision upholding a state's ban on same-sex marriage came 18 months ago in Nevada.

Contributing: Robert Garrison, KUSA-TV, Denver. Follow @richardjwolf on Twitter.



Copyright 2014 USATODAY.com

Read the original story: Federal appeals court upholds gay marriage in Utah case

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