By David Ward
Tomorrow in Denver, the U.S. Court of Appeals for the Tenth
Circuit will hear oral arguments in a case challenging Utah’s ban on marriage
for same-sex couples – and it’s a case that marriage equality supporters across
the country will be watching closely.
This will be the first time a federal appellate court has
heard a challenge to a state’s marriage ban since the U.S. Supreme Court’s
decision in United States v. Windsor last summer, which struck down part of
the so-called “Defense of Marriage Act.”
The Supreme Court’s Windsor decision
has paved the way for an amazing string of decisions by federal trial courts striking
down state marriage bans across the country – the first of which occurred in Utah on
December 20.
The Tenth Circuit has fast-tracked the appeal in the Utah case,
hearing oral arguments less than four months after the trial court’s decision (this
amounts to warp speed in the federal appellate courts). Legal Voice joined other women’s
organizations to file an amicus
brief urging the Court to strike down Utah’s ban as unconstitutional.
The arguments will be heard by a panel of three judges: Judge Jerome Holmes, appointed
by George W. Bush; Judge Paul Kelly, appointed
by George H.W. Bush; and Judge Carlos Lucero, appointed
by Bill Clinton.
This not a liberal
panel by any means – but nonetheless, many court watchers who are familiar with
the Tenth Circuit believe the panel is likely to strike down Utah’s law. A former U.S.
Attorney from Utah is predicting a 2-1 victory for marriage equality, while
the website Think Progress says that gay rights advocates should be “cautiously
optimistic.”
Observers generally agree that Judge Lucero is likely to find
that Utah’s marriage ban is unconstitutional.
And many observers are hopeful that Judge
Holmes will provide a second vote to strike down the ban. In particular, they note that Judge Holmes joined
the Tenth Circuit’s decision on December 24 to deny Utah’s request to
“stay” (put on hold) the trial court’s decision striking down the Utah marriage
ban pending appeal.
In denying the stay, the Tenth Circuit’s decision
reasoned:
A stay pending appeal is governed
by the following factors: (1) the
likelihood of success on appeal; (2) the threat of irreparable harm if the stay
is not granted; (3) the absence of harm to opposing parties if the stay is not
granted; and (4) any risk of harm to the public interest. The first two factors are the most critical,
and they required more than a mere possibility of success and irreparable harm,
respectively. Having considered the
district court’s decision and the parties’ arguments concerning the stay
factors, we conclude that a stay is not warranted.
In other words: in
December, Judge Holmes found that Utah did not show it was likely to succeed in
defending the marriage ban on appeal, nor did it make a strong showing of
harm. The Tenth Circuit’s refusal to
issue a stay also allowed hundreds of LGBT couples in Utah to marry before the
U.S. Supreme Court finally stayed the trial court’s ruling on January 6.
Of course, trying to predict how a court will rule is like
reading tea leaves. And any decision by
the 3-judge panel could be subject to further review – either by all active
judges in the Tenth Circuit, or by the U.S. Supreme Court. But this case is one to watch - and we’ll be
crossing our fingers for a ruling that moves us closer to marriage equality
throughout the country!
David Ward Legal &
Legislative Counsel at Legal Voice, where he worked on LGBT, family law, and
gender violence issues. Take David out for drinks and you can test him on
where each state stands on winning marriage equality!
Photo by Key Foster.
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