Utah Gay-Marriage Appeal Seen as Supreme Court Rehearsal

Gay-marriage bans struck down in Utah and Oklahoma are the first to come before a federal appeals panel since a June U.S. Supreme Court ruling set off a string of challenges to limits on same-sex marriage.

Lawyers for Utah Republican Governor Gary Herbert are seeking to revive that state’s 2004 voter-approved ban at a hearing scheduled today before the U.S. Court of Appeals in Denver. Legal momentum is against them. Gay marriage proponents have enjoyed a victory streak in state and federal courts in the past year. In a week, the same three-judge appeals panel is set to review a January ruling that voided Oklahoma’s similar 2004 law.

“It is possible that the Supreme Court will decide to review one of these cases, so it’s very significant,” Shannon Minter, legal director for the National Center for Lesbian Rights, said in an interview. His group is challenging the Utah law.

The Supreme Court’s decision last June in U.S. v. Windsor, which overturned part of the federal Defense of Marriage Act, stopped short of declaring a right to gay marriage. The 5-4 ruling only required that the U.S. government recognize same-sex marriages from those states where they’re legal.

That touched off a spate of litigation over gay-marriage prohibitions in Texas, Wisconsin, Ohio, Kentucky, Indiana and elsewhere, as well as decisions invalidating such measures in New Jersey, Virginia and Michigan.

21 States

While same-sex marriage has been legalized in 21 states plus the District of Columbia, the Utah, Oklahoma, Virginia and Michigan rulings are on hold pending the outcome of appeals. The Virginia challenge will be reviewed by the U.S. Court of Appeals in Richmond, while Michigan’s case will be heard by an appeals panel in Cincinnati.

“Any court of appeals case is a dress rehearsal for the Supreme Court,” said Northwestern University law professor Andrew Koppelman, 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 the Utah or Oklahoma case almost assures Supreme Court review.

‘Several States’

“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. Only New Mexico allows same-sex marriage.

Both sides on the gay-marriage fight in Utah, Oklahoma and elsewhere have seized on the Windsor ruling, which found unconstitutional a law limiting federal recognition to those marriages of one man and one woman, to bolster their arguments.

Supporters of same-sex weddings cite the majority opinion by Justice Anthony Kennedy for its reasoning that couples are entitled to equal protection under the law, while opponents prefer Kennedy’s deference to states’ “virtually exclusive” historic power to regulate domestic relations.

Tulsa Judge

“Both parties argue that Windsor supports their position and both are right,” U.S. District Judge Terence Kern of Tulsa, Oklahoma, said in his ruling voiding that state’s ban.

Invalidating Utah’s law, U.S. District Judge Robert Shelby of Salt Lake City 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.

“It’s enormously significant that these decisions are coming from states that seem to be very conservative,” Minter said. “It shows how much our country has evolved -- that even in quite conservative states, federal courts are recognizing that these marriage bans discriminate against a class of citizens and do not serve any legitimate purpose.”

Obama, Clinton

Shelby was appointed in 2011 by President Barack Obama and Kern was named to the bench in 1994 by then-President Bill Clinton. Obama and Clinton are Democrats.

Hearing today’s argument will be U.S. circuit judges Paul J. Kelly, a 1991 nominee of Republican President George H.W. Bush; Carlos Lucero, a 1995 Clinton appointee; and Jerome Holmes, a 2006 nominee of Republican President George W. Bush.

Holmes was on a panel that rejected Utah’s bid in December to put Shelby’s ruling on hold while the state pursued an appeal. The panel said the state wasn’t likely to win its appeal or prove that letting same-sex marriages go forward would cause “irreparable harm.”

1,000 Couples

Shelby’s Dec. 20 decision cleared the way for more than 1,000 same-sex couples to marry in the state before the U.S. Supreme Court in January granted Utah’s request to halt further marriages pending appeal.

In Utah’s fight to preserve its ban, an amendment to the state constitution backed by voters by almost a 2-1 margin, the state’s lawyers contend that a “long series” of Supreme Court rulings support its argument that states have the right to define marriage.

That right is constitutionally protected from unnecessary “federal intrusion,” the state said in a court filing last month. Utah also maintains it’s obligated to defend future generations of children whose well-being is threatened by redefining marriage from the traditional heterosexual model.

‘Corrosive Principle’

An appeals court ruling upholding Shelby’s decision would “enshrine in federal law the corrosive principle that moms and dads are interchangeable and, ultimately, irrelevant to children,” the state said in its March filing.

A broad array of interest groups filed friend-of-the-court arguments on both sides of the case, ranging from the National Association for Research and Therapy of Homosexuality to the Historians of Antigay Discrimination.

The camp in favor of same-sex marriage drew support from former Republican senators Alan Simpson and Nancy Kassebaum as part of a group of 20 Republicans describing themselves as conservatives, moderates and libertarians who embrace the “big tent” beliefs of Reagan. The benefits of marriage and social stability of the family unit “are promoted by providing access to civil marriage for same-sex couples,” they said in a filing last month.

The Republican group said that no matter how strongly opponents of gay marriage hold their views based on social, cultural and religious beliefs, “the law is clear that such views cannot serve as the basis for denying a certain class of people the benefits of marriage in the absence of a legitimate fact-based governmental goal.”

The Utah case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the 10th Circuit (Denver). The Oklahoma case is Bishop v. Smith, 14-5003 and 14-5006, U.S. Court of Appeals for the 10th Circuit (Denver).

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