Federal court takes up gay marriage appeals from conservative states

http://www.theguardian.com/world/2014/apr/10/federal-court-gay-marriage-appeals-utah-oklahoma

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In the next two weeks, a three-judge panel at a federal appeals court will hear arguments on either side of the same-sex marriage debate as two of the most conservative states in the nation argue their case. The hearings at the 10th circuit court of appeals in Denver will be closely watched by civil rights activists as it is the first time since last summer's momentous supreme court ruling, against the Defense of Marriage Act and California's gay marriage ban, that the issue will be heard by a federal appeals court.

It will also bring the argument over the constitutionality of state bans on same-sex marriage a little closer to the supreme court.

On Thursday, the state of Utah is appealing against a federal judge's ruling in December that a 2004 voter-approved ban on same-sex marriage is unconstitutional. On 17 April, the same court will hear from Oklahoma, which is seeking to overturn the striking down in January of its same-sex marriage ban, also in 2004.

Since the supreme court ruling in June, not a single state marriage ban has survived a federal court challenge. Now the first of a series of appeals are being heard.

More than 1,300 gay couples were legally married in Utah following Judge Robert Shelby's ruling in December, leaving them in legal limbo, before a judge granted the state an emergency stay in January. In Oklahoma, a judge set aside his order before any marriages took place.

Advocates of same-sex marriage are hoping that the legal momentum of lower court cases and the turning of the tide of public opinion in support of same-sex marriage, evident in polls, will hold sway in the justices deliberations.

On Thursday, Gene Schaerr, the lead counsel representing Utah, will argue that voters, who approved the ban 66% to 34% in 2004, and politicians have the right to define marriage, not the judiciary. In legal documents, the state said that that redefining marriage in genderless terms could affect religious freedom, provoke civil strife and over time, may even result in a declining birth rate, “perhaps even below the replacement rate”. It cites social science research, including by Mark Regenerus, of the University of Texas, who was recently discredited by a federal judge, as evidence that children do better in partnerships with a father and a mother than they do with same-sex couples.

Shannon Minter, the legal director of National Center for Lesbian Rights, which is acting as co-counsel in the Utah case, Kitchen v Herbert, said such arguments were “unmoored from any reality”. She said: “We've now had nine federal district courts since the Windsor decision hear those arguments and every single court has concluded those arguments have no merits whatsoever.”

“They boil down to trying to exploit the stereotype that gay people are anti-family and that gay marriage would case the birth rate to plummet. It's completely illogical.”

Peggy Tomsic, the lawyer who filed the original case representing three couple in Utah challenging the state ban, will argue it has cemented discrimination, particularly against same-sex couples raising children. In legal documents, the plaintiffs cite the US vs Windsor decision, in June in which the supreme court struck down provisions in Doma. Justice Anthony Kennedy, giving the majority decision in that case, made it clear how detrimental making same sex a "second tier" marriage had with regard to the children in those relationships.

“And it humiliates tens of thousands of children now being raised by same-sex couples,” he wrote, in a way that made it “even more difficult for the children to understand the integrity and closeness of their own families and its concord with other families in their communities and in their daily lives.”

The Utah plaintiffs are Derek Kitchen and Moudi Sbeity, Kate Call and Karen Archer and Lauri Wood and Kody Partridge.

The 10th circuit court of appeals is one of five federal appeal courts that will preside over nine marriage equality cases in the coming few weeks and months.

Which case will end up at the supreme court is a matter of much speculation. But Douglas Nejaime, a professor of law at the UC Irvine School of law, said he believed that the court would wait until another circuit court decides on the issue before it makes up its mind which case to hear.

Speaking of Utah and Oklahoma, Nejaime said: “Both of these case, unlike what we saw in California last year, the state is willing to defend the ban on same-sex marriage. Whichever side loses will appeal and seek review from the supreme court. My guess is the court is going to want another circuit weighing in before it decides.”

The three judges picked randomly to hear the Utah case, and next week's appeal of the ruling that struck down an Oklahoma gay marriage ban include two Republicans and one Democrat.

It will be months before they issue a ruling. It will become law in the six states in its jurisdiction, Colorado, Nebraska, New Mexico, Oklahoma, Utah and Wyoming, unless the decision is stayed.