Gay marriage comes to the Tenth Circuit Court of Appeals

[dropcap]A[/dropcap] key chapter in the story of gay marriage in the United States open today in Denver, where the U.S. Tenth Circuit Court of Appeals will be hearing arguments in the pathbreaking Utah case that in December struck down that state’s 2004 ban on same-sex marriages.

If the three-judge panel decides in favor of the plaintiffs and against gay marriage bans, Colorado’s 2006 ban also would be invalidated. States attorneys in Colorado, as well as in the rest of the states of the Tenth Circuit, would likely appeal such a decision to the U.S. Supreme Court, setting up a final legal showdown.

Arguments today begin at 10:00 a.m. at the Byron White Courthouse downtown, where clerks have been prepping for the arrival of national media crews and for throngs of interested members of the public. They have prepared an overflow chamber where courtroom proceedings will be live streamed.

This is the first of two gay-marriage cases the panel will hear in the coming days. Next Thursday, lawyers representing Oklahoma will defend that state’s ban against a recent federal ruling that mirrored the ruling in Utah. In both cases, district court judges found bans on gay marriage unconstitutionally discriminatory.

“This case signals the next chapter in the movement,” said Evan Wolfson, founder and president of national gay-rights group Freedom to Marry, referring to the Utah case, Kitchen v Herbert.

In that case, U.S. District Judge Robert Shelby in Salt Lake City became the first judge to take up the reasoning that guided the Supreme Court decision handed down the summer before in U.S. v Windsor, in which high court justices struck down key sections of the national Defense of Marriage Act. Echoing that decision, Shelby ruled that the Utah ban “demeaned the dignity of same-sex couples for no rational reason.”

In the months after Shelby’s ruling, eight similar cases striking at same-sex marriage bans have  lined up at federal courts around the country — the case in Oklahoma, Bishop v. Smith, but also cases from Virginia, Texas, Kentucky, Michigan, Ohio, Tennessee and Nevada. The cases landed on dockets in rapid succession at five of the country’s eleven federal appeals court circuits.

Any one of these nine cases could spur the U.S. Supreme Court to take another look at gay marriage.

Some observers, however, caution against the expectation that the high court will be forced to weigh in.

Luis Toro, a former clerk for the Tenth Circuit and now head of nonprofit Colorado Ethics Watch, said Windsor set such a strong precedent for gay marriage cases across the country that it might, in effect, have done the job.

“It’s not mandatory that the Supreme Court weigh in,” he said. “We have cases before five circuits, they could all agree. Eventually all eleven circuits could agree, and if there’s no ‘circuit split’ then it’s conceivable that the Supreme Court could take a pass. The fact is, there has been amazing unanimity in these recent cases. Whether the judges are Reagan, Bush, Obama appointees — none of it matters, because Windsor is so controlling.”

Shannon Minter, legal director at the National Center for Lesbian Rights, which is representing the plaintiffs in the Kitchen case, says there’s no guessing what the high court will do. He hopes the case ends here in Denver, sooner rather than later.

“The Supreme Court could take up our case or none of these cases. We could win here and that could be the end of it: The supreme court lets it stand and Utah couples can begin getting married again.”

For two weeks after Judge Shelby’s Utah ruling in December, gay couples streamed into county clerk’s offices to get hitched. The Tenth Circuit refused to stay Shelby’s ruling, but the Supreme Court eventually did. Roughy 1,300 couples got married in the interim. Those marriages hang in a legal limbo.

The Utah and Oklahoma cases have been “fast-tracked” by the Tenth Circuit. They will likely be considered together by the panel and a ruling could come as early as June.

“There is no required timeline,” said Wolfson. “But it’s been fast-tracked because people’s marriages are hanging in the balance. It’s clear the judges see this as a priority because of the suffering endured by couples who want to be married. It’s an urgent, important question.”

The gay rights cases now flooding the federal courts harken back to a previous era. For decades, civil rights plaintiffs battling other forms of discrimination looked to the federal courts for remedies. Black defendants, for example, couldn’t get fair hearings in state courts. But the Reagan years saw a successful conservative drive to win greater influence in the courts, and civil rights efforts swung back to the states. Today, however, when it comes to winning gay rights in conservative states like Utah and Oklahoma, plaintiffs see little chance their peers will vote to overturn marriage bans. The federal courts have again come to seem the best option.

The panel considering the cases in Denver includes Paul Kelly, Carlos Lucero and Jerome Holmes. Kelley was appointed by Pres. George H.W. Bush, Holmes by Pres. George W. Bush and Lucero by Pres. Bill Clinton.

The parties to the lawsuit could ask for an en banc review, where all of the active judges on the circuit court rehear the case. It is up to the court to grant such a request. An en banc review would likely add a year’s time to any decision.

There are twelve active seats on the Tenth Circuit Court of Appeals. Eleven of those seats are filled — six by judges appointed by Democratic Presidents Clinton and Obama and five appointed by Republican Presidents George H.W. Bush and George W. Bush. There are three judges from Colorado, one from Kansas, two from New Mexico, two from Oklahoma, two from Utah and one from Wyoming.

Roughly 60 gay marriage lawsuits currently are wending their way through the nation’s courts.

Reporters and activists will be tweeting today’s proceedings at #10thCircuit.

[ Image of the Byron White courthouse by Steven. ]