DENVER — The U.S. Tenth Circuit Court of Appeals will hear the second of two gay marriage cases Thursday afternoon here, wrapping up the arguments phase in what is the first round of federal cases testing the constitutionality of state gay-marriage bans.
A three-judge panel a week ago heard arguments in Kitchen v. Herbert, a case from Utah, and today will hear Bishop v. Smith, a case from Oklahoma. In both cases, district court judges found state bans on gay marriage unconstitutionally discriminatory. In each case, the states appealed that decision.
The Tenth Circuit judges — Paul Kelly and Jerome Holmes, appointed by Republican presidents, and Carlos Lucero, by a Democrat — shared out tough questions to each side in the Kitchen case last week, foiling easy attempts to read which way they are leaning on the matter.
The Oklahoma case 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 other jurisdictions as well. 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 two years later, the Supreme Court struck down sections of that controversial national law in U.S. v. Windsor, rendering moot that specific part of the complaint. The case now targets only the Oklahoma marriage ban. In January, Oklahoma District Judge Terrance Kern echoed the blockbuster ruling handed down in December by U.S. District Court Judge Robert Shelby in Salt Lake City. Shelby ruled that Utah’s law barring gay marriage “demeaned the dignity of same-sex couples for no rational reason.”
The Tenth Circuit will most likely issue a joint decision on the cases. The cases have been “fast-tracked” by the court and a decision is expected in June, although there is no set timeline.
“These cases have been fast-tracked because people’s marriages are hanging in the balance,” said Evan Wolfson, founder and president of national gay-rights group Freedom to Marry. “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.”
If the 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.
The Tenth Circuit covers a conservative middle- and mountain-west region that includes, Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
Arguments today begin at 1:30 p.m. at the Byron White Courthouse. Last week, the courtroom and an overflow chamber where proceedings were live streamed were packed with news crews and members of the public.
Since the beginning of the year, just three-and-a-half months after Shelby’s ruling in Salt Lake City, nine cases striking at same-sex marriage bans have lined up at federal courts around the country — the cases in Utah and Oklahoma at the Tenth Circuit, 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.
The parties to the lawsuits before the Tenth Circuit could ask the court 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 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 in Denver by writRhet. ]