Utah’s justification for its gay-marriage ban was questioned by two judges on the first federal appeals panel to consider such laws since a June U.S. Supreme Court ruling set off a series of challenges to them.
Legal decisions are trending against the state. Same-sex marriage proponents have won rulings striking down five states’ prohibitions in the past year. The three-judge panel of the U.S. Court of Appeals in Denver that heard Utah’s appeal today is set next week to review a January ruling that voided Oklahoma’s law.
An attorney for Republican Utah Governor Gary Herbert today asked the judges to restore the state’s 2004 voter-approved ban, which was struck down by a Salt Lake City federal judge in December.
One of the appellate judges, Jerome Holmes, compared Utah’s law with Virginia’s prohibition of interracial-marriage that was invalidated by the Supreme Court in 1967.
“In this case, why is it any different?” Holmes asked Gene Schaerr, the governor’s lawyer. For the Utah plaintiffs, “the only thing that bars them from getting married is gender,” he said. “Race in this case is gender.”
Holmes, a 2006 nominee of Republican President George W. Bush, was on a panel in December that said Utah wasn’t likely to win its appeal and refused the state’s request to temporarily block the ruling voiding its ban.
The Supreme Court last June overturned part of the Defense of Marriage Act, which limited federal recognition of marriage to unions between men and women. It stopped short of declaring a right to gay marriage. The 5-4 decision in U.S. v. Windsor required only that the U.S. government recognize same-sex marriages from states where they are legal.
Same-sex marriage has been legalized in 21 states and the District of Columbia. Rulings that invalidated bans in Utah, Oklahoma, Virginia and Michigan are on hold pending appeals. The Virginia case will be reviewed by the U.S. Court of Appeals in Richmond, and Michigan’s will be heard by a panel in Cincinnati.
One or more of those cases might be accepted for Supreme Court review.
When he invalidated Utah’s law, U.S. District Judge Robert Shelby said that while the Windsor case may not provide a clear answer, other Supreme Court rulings have shown that individual rights take precedence over states’ rights when the two are in conflict.
Shelby was appointed in 2011 by President Barack Obama. Terence Kern, the judge who ruled the Oklahoma ban unconstitutional, was named to the bench in 1994 by President Bill Clinton. Obama and Clinton are Democrats.
Hearing today’s arguments with Holmes were circuit judges Paul J. Kelly, a 1991 nominee of Republican President George H.W. Bush, and Carlos Lucero, a 1995 Clinton appointee.
Holmes and Lucero asked most of the panel’s questions, often interrupting the state’s lawyer and each other.
Lucero quizzed Schaerr, a special assistant attorney general, on the state’s contention that heterosexual marriages are better unions for raising children than those of gay couples.
“Why is the relationship between a heterosexual couple and their children likely to be stronger merely because same-sex couples aren’t allowed to have such a relationship?” he asked.
The third panel member, Kelly, expressed concern over Shelby’s decision to override the will of voters who amended the state constitution. The measure passed by an almost 2-1 ratio.
“You’re just taking the position that they’re wrong,” Kelly told plaintiffs’ lawyer Peggy Tomsic. “You’ve got a legislative and democratic process at issue here.”
Asking a court to strike down the Utah law is tantamount to asking it to ignore what the people have done, Kelly said.
“Any court of appeals case is a dress rehearsal for the Supreme Court,” Northwestern University law professor Andrew Koppelman said in an April 8 interview. He is the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines.”
“It seems quite probable that one of the courts of appeal is going to declare there is a right to same-sex marriage,” Koppelman said. “If that happens, there’s no way the Supreme Court is going to turn that case away.”
Charles Fried, a professor of law at Harvard University and former U.S. solicitor general -- the Justice Department’s top litigator -- agreed that a ruling upholding the lower court in either Utah or Oklahoma almost assures Supreme Court review.
“If either one of them comes in ‘yes,’ then I think they have to take it,” said Fried, who served under President Ronald Reagan. “They cannot leave a court of appeals decision out there on a matter like this -- that the state law of several states is unconstitutional.”
The Denver appeals court’s rulings apply to New Mexico, Kansas, Colorado and Wyoming in addition to Utah and Oklahoma. Among them only New Mexico allows same-sex marriage.
The arguments were heard in a full courtroom that included lead plaintiff Derek Kitchen, arm-in-arm with his partner, Moudi Sbeity. Utah Attorney General Sean Reyes, a Republican, sat on the opposite side of the courtroom.
Tomsic left after the hearing with her clients to cheers from supporters as Reyes stood to the side taking questions from reporters.
The Utah case is Kitchen v. Herbert, 13-4178, and the Oklahoma case is Bishop v. Smith, 14-5003 and 14-5006, U.S. Court of Appeals for the 10th Circuit (Denver).