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.