A little over two months ago, I wrote about going to see the hearing in a marriage equality case, Kitchen v. Herbert. This was being heard at the Tenth Circuit Court of Appeals here in Denver, likely on the way to a date at the U.S. Supreme Court. Earlier this week, the three judges who heard the case released their opinion. It made a fairly big splash in the news; you may well have heard the outcome before I did.
The judges ruled, 2-1, in favor of the plaintiffs and same-sex marriage. It was a major ruling in at least two ways. First, this was the first time a Federal Appeals Court had ruled on a marriage case since last summer's Windsor case (striking down the Defense of Marriage Act) at the Supreme Court. The many rulings that have been popping up all over the country over the last few months have all come from State Courts, or at the District Court level of the federal system -- essentially, "Level 1 of 3." This ruling from the Tenth Circuit comes from "Level 2."
Second, this was simultaneously the first time any judge has written against marriage equality since the Windsor case. In every court to hear a marriage case over the past seven months, every judge has ruled that a ban on same-sex marriage is unconstitutional -- well over a dozen cases at this point. But as I mentioned, the judges in this appeal split 2-1. That one, Judge Kelly, became the first judge to argue that such bans are constitutional.
Unsurprisingly, Judge Kelly wasn't able to present any new compelling argument, nor recast the facts in any novel way, that is likely to sway the views of Justice Kennedy, the Supreme Court swing vote who will almost certainly settle this case. Kelly's dissent simply parrots the same arguments that all those other judges I mentioned have demolished in opinion after opinion. No, the 1972 summary dismissal of Baker v. Nelson should not carry weight now, 40 years later, in light of all that has changed. No, it is not rational to discriminate against gays and lesbians on the basis of fostering procreation and child-rearing, when infertile heterosexual couples are allowed to marry, gays and lesbians are raising children too, and child-rearing outcomes are not otherwise measured for any other parents. This is truly the best material the other side has. None of it convinced Justice Kennedy in Windsor, and that's not going to change next term when the Supreme Court confronts the issue again.
The majority opinion in this case was written by Judge Lucero, and is also interesting in contrast to all those other supportive rulings of the past months. The lower District Court judges, looking to buttress their rulings against appeals in as many ways as possible, have typically examined the facts from myriad angles and shown how marriage bans are unconstitutional no matter how the subject is approached. Lucero's opinion here (joined by Judge Holmes) is far more focused. Indeed, it virtually ignores that this is a case about gays and lesbians. Rather than get into whether the marriage bans represent animus against them, or whether they represent a class deserving of heightened protection in the court system, Lucero instead focuses on the issue of marriage itself. Marriage has been so consistently described as a fundamental right in such a variety of court cases over the decades that virtually no impediments of that right could be constitutional, he argues.
And now, a new wait begins until we see what happens next. The state of Utah, having lost this stage, will certainly appeal the ruling. But they have two paths they can take. Most likely, they'll go straight to the Supreme Court, "Level 3." But they can also request an en banc hearing, a "Level 2.5." Instead of accepting the three randomly selected Tenth Circuit judges who just ruled on the case, they can ask all the circuit's judges to hear the case again together. And either path leads to more possibilities. The Supreme Court might take this case, or might instead take a different marriage case out of a different appeals circuit. (A case from Virginia, in the Fourth Circuit, is expected to be ruled on soon.) The Tenth Circuit might grant or deny an en banc hearing.
As is par for the course in this process, a burst of activity is then followed by days or weeks of waiting. Maybe I should go on vacation again soon and see if something else exciting happens while I'm gone.
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