DENVER– A panel of three judges at the U.S. Tenth Circuit Court of Appeals here last week grilled lawyers presenting arguments in a Utah case that saw that state’s gay-marriage ban struck down in December. The judges — Paul Kelly and Jerome Holmes, appointed by Republican presidents, and Carlos Lucero, by a Democrat — shared out pointed questions equally between the sides, clouding speculation about their leanings while exploring points of law that will help set the legal field of play for the long list of gay-marriage cases now crowding court dockets across the nation.
The Utah case, Kitchen v. Herbert, was the first decided after the Supreme Court’s path-breaking decision last summer in U.S. v. Windsor. That decision overturned sections of the national Defense of Marriage Act for unconstitutionally infringing on gay Americans’ rights. In his ruling striking down Utah’s 2004 marriage ban, conservative U.S. District Court Judge Robert Shelby followed the reasoning articulated in Windsor. The marriage ban, he wrote, “demeaned the dignity of same-sex couples for no rational reason.” The state sought a stay of the decision, but the Tenth Circuit Appeals Court notably refused to issue one, forcing Utah to ask the U.S. Supreme Court. In the three weeks it took the High Court to issue its stay, more than 1,000 gay Utah couples got hitched. The governor and attorney general then appealed Shelby’s ruling and, given the everyday personal nature of the issue and the new marriages that were now hanging in legal limbo, the Tenth Circuit fast-tracked the case. The same three judges this week will hear a similar case from Oklahoma, Bishop v. Smith, and are expected to issue a combined decision on the cases in June.
The Tenth Circuit court covers a conservative middle- and mountain-west region that includes, Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The Utah lawsuit was filed a year ago. The plaintiffs include three couples — one unmarried couple, one couple who were married in Iowa and who now live in Utah and one couple recently married in Utah.
The Oklahoma case to be heard Thursday in Denver, was filed in 2004 by two Tulsa lesbian couples after voters there approved a ban on same-sex marriage that also banned state clerks from recognizing same-sex marriages granted in any jurisdictions. The suit targeted the 1996 federal Defense of Marriage Act and the state marriage ban. In the decade it has taken to be heard at the federal appeals court in Denver, the plaintiffs saw repeat delays and twists and turns in the case that reflected shifts in public opinion, national politics and judicial reasoning. When the Obama Administration announced in 2011 that it would no longer defend the Defense of Marriage Act, for example, House Republicans said they would step in and defend the Act in Oklahoma. But after the Windsor ruling came two years later, rendering moot the specific complaint against the Defense of Marriage Act, the case was reduced to targeting the Oklahoma ban. In January, Oklahoma District Judge Terrance Kern echoed Judge Shelby’s December ruling in Utah when he said state laws barring gay marriage were unconstitutional. The state appealed that decision, which is why it’s on the docket in Denver.
At the hearing for the Utah case last week, lead lawyers had a half-hour each to plead their case. They spoke at a rapid clip, but neither made it more than a couple of minutes at a stretch before the panel broke in with questions. There were important technical matters to be resolved having to do with jurisdiction and which level of judicial review to apply to the questions raised by the case. This was about establishing the rules of combat. Stricter scrutiny would place the burden on the state to persuade the judges that its law was not unnecessarily discriminatory. Looser scrutiny would place the burden on the plaintiffs to persuade that it was.
There also came the broader theoretical questions typically tied to legal considerations of gay marriage having to do with the definition of marriage and its purpose, the nature of discrimination and the rights of minority groups.
By all accounts, Peggy Tomsic — a highly successful business-law attorney and lead council for the plaintiffs — shined in Salt Lake City before Judge Shelby. A lesbian who married her longtime partner just hours after Shelby’s handed down his ruling, she argued an impressively thorough case and did so with feeling. She didn’t seem to have the runway space she needed to take off at the higher court in Denver.
“I wouldn’t say she was less passionate this time,” said Kendall Wilcox, a documentary filmmaker who flew in from Utah. “I would say just that this was much more… specific.”
Gene Schaerr is the state of Utah’s hired gun, contracted by Attorney General Sean Reyes in January. A veteran Supreme Court and appellate attorney raised in Utah, Schaerr resigned his partnership at a prominent Washington law firm to become Utah’s Special Assistant Attorney General. His fees for the case are capped at $200,000. In an email sent to colleagues in January explaining why he was taking the job, he cited his Mormon faith as a prime motivation. “I have accepted this position so that I can fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.”
Championing ‘gender diversity’
Schaerr offered perhaps the most head-spinning argument of the hearing. He said legal precedent championing diversity in the United States supported Utah’s effort to restrict marriage to heterosexual couples, because there is a right and a wrong kind of diversity. Biological “gender diversity” is the right kind of diversity and sexual-orientation diversity is the wrong kind of diversity, he argued, and the government has a legitimate interest in promoting more of the first and less of the second.
“The state’s interest in promoting gender-diverse parenting we think is as legitimate a governmental interest as the interest in gender and racial diversity in education, which the Supreme Court has held is a compelling interest.”
That’s when Judge Lucero cut in.
“Why is a heterosexual couple more likely to get married if gay couples aren’t allowed to be married?” he asked. “Why is the relationship between a heterosexual couple and their children likely to be stronger merely because gay couples aren’t allowed to have such a relationship? I don’t understand the causal connection between the two.”
Schaerr was now deep in the other team’s end zone and clearly the plan for this moment when it arrived was to throw a very long pass.
“The law being a teacher” is the connection, he said. “Change the law and you change the vision of marriage. You send a message that we don’t need men — we don’t need you [men] to have a happy marriage or a productive marriage — that gender is not really that important.” And if legalizing gay marriage sends such a message, Schaerr continued, it will have a negative influence on boys in particular. They’re more likely to go to prison if they come from fatherless homes, he said, leaning on a quote from former National Organization for Marriage President Maggie Gallagher.
“Change the law and it will have real world effects on individuals,” he said. “Or at least a significant risk that will happen… even if there’s no conclusive statistical evidence about [gay marriage’s] impact.”
A lot of words had filled the air quickly. Reporters’ hands robotically covered notebook pages in ink while their eyes stayed glued to the bench. Schaerr was making a point at the heart of Utah’s case. He had said that one hypothetical message we might send by legalizing gay marriage could hypothetically inflict one hypothetical kind of harm. In passing the marriage ban, voters perceived that there might be a risk and responding to the perception should be seen as a legitimate state interest, because there’s no evidence that there’s not a risk.
“Governments are entitled to legislate and regulate on the basis of risks they perceive to their populations, even when those risks have not been proven to be a problem,” Schaerr said.
He was dancing in the high reaches of theory and Judge Holmes at least was ready to point out how thin the air had become.
“On that ground, it seems to me — How do you say his name, Professor Regnerus? — as recently as yesterday, it seemed you were backpedaling from the view you took in the brief in support of his theory that same sex relationships have inferior results as it relates to child rearing. Is that true? What’s left of your support for his theory, if anything?”
Almost nothing was left of their support.
“We just want to be sure the court understands that we are not trying to overstate what his study shows,” said Schaerr, “The bottom line from all of that is that the science is inconclusive.”
The desertion of University of Texas sociology Professor Mark Regnerus by the Utah legal team is as big as any news that came out of last week’s hearing.
Utah’s lawyers had cited Regnerus’s “New Family Structures Study” in the opening brief they submitted to the court just weeks ago, but they sent a letter Wednesday night to the judges — hours before they were scheduled to hear arguments — saying the comparisons Regnerus drew between gay parents and straight parents were of “very limited relevance” to the case they intended to present.
It was a stunning turnaround.
Regnerus’s research was commissioned in 2010 by the anti-gay marriage Witherspoon Institute, which gave him a $700,000 grant to do the work and asked him to have it finished in time to be used in gay marriage cases then heading to the Supreme Court. The study was celebrated with much fanfare by conservative groups even before it was first published in the academic journal Social Science Research in July 2012. Groups like Focus on the Family touted it as “a research gold standard” that provided evidence gay parents raise less healthy and happy children than do straight parents.
But the mainstream media received the study with deep skepticism and soon revealed its convoluted findings had more to do with parents who split up than with their sexual orientation. Then the academic community took the study apart and wrote off its findings. The University of Texas reeled from its taint, and the courts recently have come to see through it as well. Judge Bernard Friedman, ruling against gay-marriage bans in Michigan last month, called the Regnerus line “entirely unbelievable and not worthy of serious consideration.”
Whatever else comes of the Kitchen case, the Utah team’s letter may have finished off the ragged “New Family Structures Study.” That the research has lost its power so quickly and has turned out useless even in the narrow legal settings for which it was designed is a cautionary tale in an era where fake science seems to pour in torrents every day through the political media-sphere.
‘As personal as it can be’
Utah Attorney General Reyes is 42 years old. He was appointed after the headline-grabbing resignation of his predecessor, John Swallow, who for the entire year he held office was buried in pay-to-play and campaign-finance corruption charges. < http://le.utah.gov/investigative/Final_Report_simple.pdf > Reyes was sworn in a week after Judge Shelby’s Salt Lake ruling, when the rush on gay marriage was running full steam in Utah and scenes from clerks’ offices flashed on video screens across the nation. Reyes is Mormon. He and his wife have six kids.
“I’m starting Day One with a case involving the defense of marriage,” he said at his swearing-in ceremony. “I’m not going to talk today about the merits of the case, but this could be a potentially divisive case. I don’t think it needs to be divisive. With the respect and good will from those on both sides of the issue, I think we can disagree in a healthy way and remember we are all still Utahns.”
Three weeks later, U.S. Attorney General Eric Holder said state attorneys general could refuse to defend gay-marriage bans. Holder is the nation’s first black attorney general and has said today’s gay-rights movement is “the defining civil-rights challenges of our time” — an extension of the civil-rights movement that won greater rights for black Americans in the 1950s and 1960s.
Seven state attorneys general have so far refused to defend marriage bans. Last month, Kentucky’s Attorney General Jack Conway, a Democrat, announced that, after much reflection, he decided not to defend Kentucky’s law banning recognition of out-of-state gay marriages. Video of Conway’s announcement rocketed around the Internet. He spoke haltingly near the end of his remarks, his eyes growing glossy, tears running down his cheeks. He said he thought about how his two young daughters would eventually look upon his decision.
“I felt like I would be defending discrimination,” he said. “I thought long and hard. I thought about the arc of history. I thought about the fact that at one time in this country we discriminated against women… against people of color…people with disabilities. This is the last minority group in this country that a significant portion of our population thinks it’s OK to still discriminate against in any way, and I didn’t think that was right.”
On Thursday, when Reyes entered the courtroom in Denver, he went over to the plaintiff’s seating section and told 25-year-old Derek Kitchen that his decision to defend the state’s gay-marriage ban wasn’t personal.
“I think he was sincere,” Kitchen told reporters outside the courthouse after the hearing. “I think he’s a genuine person. But I don’t understand it. I don’t understand his motivation. This is personal. It’s as personal as it can be.”
Reyes later tried to explain his thoughts to the same scrum of reporters. “I wanted to say that I recognize that their families are as important to them as mine is to me.”
After an hour of legal back-and-forth, where love and marriage as topics had been mostly drained of life, the reporters crouched around Reyes smelled flesh and blood.
Did he fear this case, dropped in his lap, would end up defining his legacy and his future as a lawyer and politician?
“It’s not my job to think about my legacy,” he said. “I’m living up to my responsibilities. This has been about duty. I took an oath.”
In that answer, Reyes had taken a fast turn, appearing to speed away from a question no one had asked. So then it came: Did he personally oppose the state ban on gay marriage?
“I have never stated my personal opinion for the record,” he said.
A reporter near the back of the scrum shouted for him to go on the record. “Do you support the ban?”
Reyes didn’t look for that reporter. He kept his head perfectly still. “My personal opinions aren’t relevant when it comes to defending state laws.”[ Photo: Peggy Tomsic, lead counsel for the plaintiffs in the Kitchen case, outside the Tenth Circuit Court of Appeals, April 10, 2014. ]