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Appeals court hears arguments on same-sex marriage ban Appeals court hears arguments on same-sex marriage ban
(about 2 hours later)
DENVER — A panel of appeals court judges appeared torn Thursday about whether Utah voters and legislators who defined marriage as only between a man and woman violated the constitutional rights of same-sex couples who want to marry. DENVER — The legal battle over whether same-sex couples have a constitutional right to marry came for the first time Thursday before a panel of appeals court judges, who struggled to decode the Supreme Court’s message on gay rights last summer.
Three judges of the U.S. Court of Appeals for the 10th Circuit were considering a lower court’s decision that Utah’s ban on same-sex marriages could not stand in light of the Supreme Court decision last summer ordering the federal government to recognize same-sex marriage from states where they are legal. In weighing whether Utah’s ban on same-sex marriages withholds a fundamental right that must be made available to all, the three-judge panel of the U.S. Court of Appeals for the 10th Circuit said that the Supreme Court ruling in the U.S. v. Windsor case holds the key.
But at the same time, the Supreme Court justices last summer did not recognize a constitutional right to gay marriages. The Supreme Court’s 5-to-4 decision struck down the federal government’s definition of marriage as only between a man and a woman and said federal authorities must recognize same-sex unions performed in states where they are legal.
Listen to the judge’s arguments But the ruling did not find that states must offer the right, and left open exactly how lower courts should decide if state bans represent a rational protection of the age-old definition of marriage or a form of unconstitutional discrimination.
Utah’s lawyer, Gene C. Schaerr, told the judges they should not believe the Supreme Court “with a wink and a nod” was telling lower courts to recognize a constitutional right. Appeals courts around the country are set to grapple repeatedly with that issue in the coming months, after a series of recent decisions by federal courts favorable to same-sex marriage. Federal judges in Virginia, Oklahoma, Texas and Michigan have struck down bans in those states. Courts in Tennessee, Ohio and Kentucky have said those states must recognize gay marriages performed elsewhere.
But Schaerr faced tough questions from two members of the panel, who said deference to voters and legislators could not come at the cost of a constitutional protection that applies to all. In fact, the same three 10th Circuit judges will meet next week to consider the Oklahoma case, and the U.S. Court of Appeals for the 4th Circuit in Richmond next month will review Norfolk-based U.S. District Judge Arenda L. Wright Allen’s decision striking down Virginia’s laws.
Judge Carlos Lucero, who was nominated by President Bill Clinton, said Utah had not shown how its desire to promote a man-woman model of marriage as the ideal for children was advanced by forbidding gays to marry. All are in service of returning the issue to the Supreme Court, likely in time for the justices to consider the constitutional question in its term that begins next October.
Judge Jerome A. Holmes, nominated by President George W. Bush, compared the case to the Supreme Court’s decision to get rid of laws that prohibited marriage between the races. In Thursday’s arguments, Utah’s lawyer Gene C. Schaerr acknowledged that an unbroken line of federal judges have ruled that the Windsor decision means the state bans must fall, just as a Salt Lake City judge ruled in Utah.
But at the same time, Holmes seemed troubled by the idea that Utah’s decision to protect traditional marriage was a violation of the Constitution. But Schaerr said the judges were misreading the Supreme Court opinion’s central point that states have the lead in defining marriage and that they should not believe the Supreme Court “with a wink and a nod” was telling lower courts to recognize a constitutional right.
The third member of the panel, Judge Paul J. Kelly Jr., who was nominated by President George W. Bush, said he was not inclined to label Utah’s voters as “mean-spirited and bigoted” for preserving a traditional view of marriage. Circuit Judge Paul F. Kelly Jr. seemed inclined to agree with Schaerr that it should be up to Utah citizens and legislators to define marriage.
The appeals court hearing was the first to review one of the unanimous judicial rulings from around the country that state bans on gay marriage cannot stand in the wake of last summer’s Supreme Court action. His colleague Carlos Lucero sharply disagreed, saying the state’s justifications for enshrining what Schaerr called the “man-woman model” of marriage were considered and rejected by the Supreme Court when examining Congress’s decision for such a definition in the Defense of Marriage Act.
The Utah ban, approved by 66 percent of those voting in 2004, was struck down in December by U.S. District Judge Robert Shelby in Salt Lake City. The third judge, Jerome A. Holmes, seemed torn over what the Supreme Court requires. He gave hope to those who challenged the ban by immediately comparing the case to Loving v. Virginia, the Supreme Court’s 1967 landmark decision striking bans on interracial marriage.
Since then, federal judges in Virginia, Oklahoma, Texas and Michigan have made similar findings. Courts in Tennessee, Ohio and Kentucky have said those states must recognize gay marriages performed elsewhere. He pressed Schaerr: how is this different? In Loving, the couple was prevented from marrying only because of race. “Here you have a man who wants to marry another man,” Holmes said. “The only thing that prevents it is gender.”
Next week, the same 10th Circuit panel will review the Oklahoma decision, and the U.S. Court of Appeals for the 4th Circuit in Richmond will review Norfolk-based U.S. District Judge Arenda L. Wright Allen’s decision striking down Virginia’s laws. At the same time, he said, the Supreme Court was unclear about how judges should scrutinize state bans. If a state government must only show it has a rational basis for its decision to enact a ban, it likely wins, he said. If the decision to treat one group differently from another demands more justification than that, the government likely loses, he said.
The appeals in the nation’s regional courts are the intermediate stop in returning a question to the Supreme Court that the justices avoided the first time around — whether marriage is a fundamental right that under the Constitution may not be denied to same-sex couples. Utah’s ban, enacted overwhelmingly by voters in 2004, was challenged by two same-sex couples who want to marry — Derek L. Kitchen and Moudi D. Sbeity; and Laurie Wood and Kody Partridge — and by Kate Call and Karen Archer, who married in Iowa and want Utah to recognize their marriage.
Both sides in the ideological battle are surprised at the speed with which the legal challenges are proceeding. The cases in Denver, Virginia and the rest of the country could tee up the issue in time for the Supreme Court term that begins in October. U.S. District Judge Robert Shelby became the first judge to strike down a state ban following the Windsor decision when he ruled in their favor in December.
Gay marriage is now legal in 17 states and the District of Columbia, covering more than 40 percent of the nation’s population. The remaining states forbid same-sex unions, either through laws or constitutional amendments. “The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” Shelby wrote.
Utah is one, and its ban was challenged by two same-sex couples who want to marry — Derek L. Kitchen and Moudi D. Sbeity; and Laurie Wood and Kody Partridge — and by Kate Call and Karen Archer, who married in Iowa and want Utah to recognize their marriage. Shelby and then a panel of the 10th Circuit--Holmes was a member-- turned down Utah’s request to put the decision on hold while it was appealed. More than 1,200 couples were wed before the Supreme Court approved Utah’s stay request 17 days later.
Shelby ruled in their favor in December, becoming the first judge to strike down a state ban after the Supreme Court’s 5 to 4 June decision in U.S. v. Windsor that found part of the federal Defense of Marriage Act unconstitutional. The justices gave no reason for granting the stay and thus shed no more light on its reasoning in Windsor.
The court’s majority said the federal government cannot not deny federal benefits and recognition to same-sex couples who were married in states where gay nuptials are legal. The court said Congress’s decision to define marriage as only between a man and a woman had no rationale other than a discriminatory moral disapproval of gay couples. In asking the court to be “appropriately deferential to democracy,” Schaerr told Holmes that Loving was a different case because it did not change the definition of marriage as between those of different genders.
Shelby said the reasoning behind the court’s decision should be applied to Utah’s ban. He said Utah’s view of marriage is based on what best for children, and that is being raised with a mother and father. He said those challenging the ban believe marriage is only about adults and their desires.
“The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” Shelby wrote. Schaerr, an experienced appellate lawyer who resigned from his Washington law firm to represent the state, got tough questions from Holmes, who was nominated by President George W. Bush, and Lucero, a choice of President Bill Clinton.
Shelby and then a panel of the 10th Circuit turned down Utah’s request to put the decision on hold while it was appealed. More than 1,200 couples were wed before the Supreme Court approved Utah’s stay request 17 days later. Holmes questioned whether the state had provided any proof that children raised by gay couples fared worse than those raised in heterosexual households.
The justices gave no reason for granting the stay and thus shed no more light on the court’s June decision in U.S. v. Windsor that has prompted the legal action. And Lucero questioned how the state promoted its stated goals by prohibiting gay marriage.
On one hand, the opinion written by Justice Anthony M. Kennedy and joined by the court’s four liberals noted that defining marriage is traditionally a power reserved for the states. “How is a heterosexual couple more likely to get married if a gay couple is not allowed to get married?” he asked.
On the other, the opinion dismissed Congress’s arguments as to why the federal government should recognize only traditional definitions of marriage. It said the arguments were mostly window dressing for unlawful prejudice based on sexual orientation. When Schaerr said, more than once, that a view of marriage based only on what adults desire could make it hard to rule against polygamy, Lucero stopped him.
There are lawsuits challenging those restrictions in all but five states — Alaska, Georgia, Montana, North Dakota and South Dakota. Appeals of judicial decisions regarding the bans are pending in five of the circuit courts of appeals into which the country is divided. “There’s plenty of time to talk about polygamy. Let’s talk about gay marriage today, Lucero said.
Lucero more supportive of lawyer Peggy A. Tomsic, who represented the couples.
Tomsic said deference to democracy does not mean that the majority can curb the constitutional rights of the minority.
But she was pressed by Kelly on the fact that the Supreme Court has not found there is a constitutional right for gays to marriage.
Kelly said that he was not inclined to believe those who voted to put the traditional definition of marriage in the Utah constitution did so because they were mean-spirited or bigots.
“Just because you disagree with the state doesn’t make it irrational, does it?” he asked.
Tomsic said the state had failed to provide any proof for its rationale that same-sex parenting is worse for a child than other households. Even if the state must only prove it has a rational basis for a decision, she said, that standard is not “toothless.”
“When the government separates people into classes for unequal treatment,” Tomsic said, the burden is on the state to prove why.
Utah’s policy on marriage, she said, cannot be reconciled with its stated goals, she said. The state’s ban does not “reaffirm” traditional marriage, she said; “it is to exclude” gay couples.
Holmes said Tomsic was right that Utah cannot withhold something that is a constitutional right.
“What we’re trying to determine is, what is the constitutional right?” he said.
It could be months before the 10th Circuit panel rules. Its decision would be binding on the states within its jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.It could be months before the 10th Circuit panel rules. Its decision would be binding on the states within its jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
But New Mexico’s highest state court already took note of the Windsor decision and ruled unanimously that the state must allow gay marriages.But New Mexico’s highest state court already took note of the Windsor decision and ruled unanimously that the state must allow gay marriages.