Thursday was round two in the 10th Circuit of the U.S. Court of Appeals for challenges to rulings striking down marriage equality bans. Last week, a three-judge panel heard arguments about the Utah ruling. This time, the same three judges heard arguments in the challenge to the ruling striking down Oklahoma’s marriage ban. What’s significant is that the judge widely viewed as the swing vote on the panel, Jerome Holmes, seemed to tip his hand in favor of upholding the rulings.
“The state cannot define marriage in any way that would trample constitutional rights, right?,” Holmes asked the attorney representing Oklahoma, which wants the ban to remain. That’s a pretty pointed question that gets to the heart of the legal issue. The other two judges on the panel, Carlos Lucero and Paul Kelly Jr., have already signaled that their votes. (Lucero for marriage equality, and Kelly against.)
The state’s predictably lame response is that the voters overwhelmingly supported the marriage ban, so it is okay to trample constitutional rights. Also, opposite sex couples have “natural procreative potential,” as if the state demands a fertility test to get a marriage certificate.
The other legal issue that the judges grappled with was an important technicality: did the couples seeking to overturn the ban sue the right people? If not, the court wouldn’t have to rule in their case.
The Utah and Oklahoma cases are largely identical otherwise. The judges aren’t expected to rule until later in the summer. No matter how they rule, the ultimate arbitrators will have to be the justices of the Supreme Court. It’s inevitable that they will have to take the issue up again in their 2014-2015 session.