DENVER — The 10th Circuit Court of Appeals heard more than an hour of arguments Thursday morning over the question of same-sex couples’ marriages — with the three judges hearing the case being split on several key questions needed to be resolved but with the court leaning toward striking the ban.
At precisely 10 a.m., the three judges hearing the case — Judges Paul J. Kelly Jr., Carlos F. Lucero, and Jerome A. Holmes — entered the courtroom, hearing more than an hour of arguments on the issue.
With two of the judges — Lucero and Holmes — focused intently on the discrimination claimed by the plaintiffs and the Supreme Court’s history of recognizing marriage as a fundamental right, the hearing ended with the court appearing to lean toward agreeing with the trial court decision that the law is unconstitutional. Holmes, however, had tough questions for both sides — and even suggested near the end of the argument that the court might not have the authority to hear the case.
Gene Schaerr, a D.C. lawyer who left a high-powered law firm to serve as the outside lawyer to the state, took to the podium first, arguing that the decision by U.S. District Court Judge Robert Shelby striking down the ban should be reversed by the appeals court.
Schaerr began his arguments by telling the judges that “[t]he issue before the court is not how the issue [of same-sex couples’ marriage rights] … should be decided, the issue is one of authority.”
Specifically, Schaerr pointed to the Supreme Court’s decision striking down the Defense of Marriage Act last June, saying, “In [United States v.] Windsor, the court was clear that the states have virtually complete authority to define marriage.”
Lucero, who repeatedly signaled that he believed the same-sex couples’ arguments would ultimately succeed, shot back that, although the court, in Justice Anthony Kennedy’s opinion for the court in Windsor, talked about federalism, “when it came time for the dispositive language … it disavowed a decision that would be predicated upon federalism and said it was based on equal protection” of the laws.
Holmes, for his part, peppered both attorneys with skeptical questions, sparring with Schaerr about the meaning of the Supreme Court’s marriage cases, from Loving v. Virginia, in which the Supreme Court struck down bans on interracial marriage, to another case, of which Holmes said, “Zablocki didn’t talk about a fundamental right to marry for deadbeat dads, it talked about a fundamental right to marry.”
That question, about whether the right in question is one to marry or for same-sex couples to marry, was one of the key debates at the court today. The second key question was about whether Amendment 3 is a sex-based classification or a sexual orientation-based classification — and in either event, what level of scrutiny should apply to that classification. That level of scrutiny — for example, race-based classifications receive what is called strict scrutiny, sex-based classifications receive intermediate scrutiny, and general laws receive what is called rational basis scrutiny — Holmes suggested, could control the outcome of the case.
Tomsic, who argued the case before the trial judge, spent her 30 minutes arguing both about what level of scrutiny should be applied by the court — and that, even under the lowest level of scrutiny, her clients should not be denied the right to marry.
Most of the skeptical questions she faced came from Judge Kelly, who told Tomsic at one point, “Under rational review, just because you disagree with the state’s reason doesn’t make it unconstitutional.” Later, he suggested the case overlapped with arguments about polygamy, saying, “[I]t seems to me it all goes together.”
Utah’s ban on same-sex couples’ marriage was initially struck down on Dec. 20, 2013, by Judge Shelby. Shelby did not issue a stay, putting his ruling on hold, and more than 1,300 same-sex couples married after both Shelby and the 10th Circuit — in a decision by Judges Holmes and Robert Bacharach — denied the state’s request for a stay. The marriages did stop, at least temporarily, when the Supreme Court issued a stay during the appeal on Jan. 6.
Whichever party loses the case at the 10th Circuit is expected to ask the Supreme Court to review the decision.
In the moments before the judges considered the constitutionality of Utah’s ban on same-sex couples’ marriage, however, the state’s attorney general, Sean Reyes — who is defending the law — walked across the aisle and met the same-sex couples arguing that the ban is unconstitutional.
Kneeling down and talking to the plaintiffs as Tomsic introduced Reyes to them, the moment of quiet, smiling conversation was one small sign of the way the once acrimonious battle over “gay marriage” has turned into something different — a move the couples hope is an inevitable march toward marriage equality.
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