A Big Day in Court

Yesterday, I had the chance to witness possible history in the making.

But first, some background. Depending on where you get your news, you may be aware of the significant number of court rulings on same-sex marriage in the United States over the last four months. Utah, Oklahoma, Texas, Kentucky, Virginia, Michigan, and Ohio have all made headlines with a federal court judge issuing a ruling on the subject. Differences in each case have led to rulings of different scopes, but in each of these rulings (made in the wake of last summer's Supreme Court ruling in Windsor v. United States), marriage equality has a perfect record.

Challenging a law like this in federal court is inevitably a three step process. First, a court at the state level hears the case and rules. That's the step each of the seven states I mentioned above represented. The third and final step is a trip to the Supreme Court. In between are the Federal Courts of Appeal, divided into a number of Circuits. Lose your argument at the State level, and you're off to whichever Circuit includes your state.

In the case of Utah and Oklahoma, that's the Tenth Circuit Court of Appeals. And it happens that the Tenth Circuit is located right here in Denver. The oral arguments in the Utah case were scheduled for yesterday (and are scheduled in the Oklahoma case for next Thursday), and though seating is limited, court proceedings like this are open to the public.

Now I'm certainly no expert. But I've been following these various court proceedings with understandable interest, and so I'm going to lay claim to a deeper understanding of the cases and laws at issue than the average layman. And if I'm asked to place a bet, I'd say there's a very good chance that of all these various cases, this case from Utah (known as "Kitchen v. Herbert") will be the one that ends up before the Supreme Court in 2015 to settle the matter of same-sex marriage nationwide. So, on that chance, I decided to wake up early yesterday morning, drive down to the court, and see if I could get into one of those limited public seats.

I did.

You can listen to an audio recording of the one hour proceeding here, at the Tenth Circuit's web site. But there was something special about being there in person. I wound up crammed into a bench with a gay couple on my right, and a Salt Lake City-based morning radio personality on my left. All of us were hoping for the same outcome, and so the hearing itself became an odd cross between church (maintain a respectful silence) and a sporting event (cheer for your side!).

A panel of three judges heard the case. You can find commentary all over the internet now, people musing over the disposition of those judges during the hearing. You'll find just as much commentary advising you not to read too much into the questions asked by judges during such a hearing.

That said, there was simply no room for doubt that one of the judges, Carlos Lucero, could not be more supportive of "our side." Whenever he'd direct a particularly withering question to Utah's lawyer, the couple on my right would pump their fists, and the radio personality to my left would star her notes with a flourish. There was another judge, Paul Kelly, who seemed to want to rule the other way, in support of the marriage ban, but Lucero's questions clearly painted the box that any such ruling would have to fit into:

How do you even make such a ruling here when the Supreme Court's opinion in the Windsor case seemed to clearly state that such discrimination is unconstitutional?

If banning same-sex marriage is supposedly for "the good of the kids," how can you possibly square that with the fact that same-sex couples are also raising children?

But near the end of the hearing, Lucero dropped a real bomb that I've never heard of coming up in any other marriage equality case. He compared Utah's refusal to recognize a same-sex marriage from another state (Iowa, in this case) to the most notorious Supreme Court ruling in history, Dred Scott -- the ruling that upheld slavery and precipitated the Civil War. Yeah... he went there. And there was an audible gasp in the courtroom when he did.

Commentators have seized on how the third judge, Jerome Holmes, is thus now positioned as the "swing vote." In my opinion, there's little cause for concern. Though he did ask pointed questions of both sides, he happens to be one of the judges who in December ruled not to stay the original ruling in this very case. That refusal led to a period of a few weeks where same-sex marriages actually took place in Utah before the other side ran to the Supreme Court for their stay. It simply defies reason to imagine this judge would not stay a ruling if he would choose to overturn it, given the chance.

Well, here's his chance, and his questions seemed mostly to do with the questions of scrutiny (whether or not, to win this case, gays and lesbians have to be defined officially for the first time as a suspect class worthy of additional legal protections) and of standing (essentially, whether this case could wind up being thrown out by the Supreme Court on a technicality similar to the one that prevented last year's California case from being the one that settled this issue).

I am going to join the prevailing chorus in predicting a 2-1 win for our side here. But I think there's an outside chance of a 3-0 win too, if Judge Kelly tries to write the opinion no other judge since Windsor has been able to and finds he can't credibly do it either. Perhaps we'll get further insight into the thinking of these three judges next week when they also hear the Oklahoma appeal.

If this does wind up being the case that goes to the Supreme Court, then I had a chance to watch the parade drive by here in Denver on the way to that final destination. And even if it turns out to be one of the other cases, it was still an encouraging morning, watching a handful of people fight for their rights, my rights, and the rights of thousands of others like me.