TOO CLOSE TO CALL

Is The Winning Streak In Court For Marriage Equality About To End?

gay-marriageA three-judge panel of the U.S. Court of Appeals heard arguments Thursday in the state of Utah’s challenge to a lower court decision that overturned the state’s ban on marriage equality. Based on the hour-long arguments from the panel, the winning streak that marriage equality has enjoyed in the federal courts could be in jeopardy.

Each of the three judges was appointed by a different president. Judge Carlos Lucero was appointed by President Clinton, Judge Jerome Holmes was appointed by President George W. Bush, and Judge Paul Kelly Jr. was appointed by President George H.W. Bush. The three represent the spectrum of judicial comfort with same-sex marriage.

Lucero suggested that the ban was comparable to the Dred Scott decision that denied protections to African Americans. “To argue that public policy can trump a declared constitutional right would be a remarkable proposition,” Lucero said. By contrast, Kelly argued that those seeking to overturn the ban were saying “we’ll just ignore what the people have decided and the Legislature has done.”

Which leaves Holmes as the key vote. Holmes, the first African-American judge in the Court’s district, compared the case to the Supreme Court decision that struck down the ban on interracial marriages. But he also questioned whether the court should overturn the state’s power to define marriage as it sees fit. Then again, Holmes was one of the judges who refused to issue a stay of the lower court ruling, allowing marriages to continue in Utah until the Supreme Court halted them.

The same three judges will meet again next Thursday to review the challenge to the court ruling striking down Oklahoma’s marriage ban. The judges aren’t expected to issue decisions until later in the summer. Whatever the outcomes, the rulings are likely to be appealed to the Supreme Court.

Meantime, Utah must be feeling the sting of its defense of the marriage ban. The night before the appeals court heard arguments, the state informed the court not to pay much attention to the work of Mark Regnerus, the discredited researcher who claims children of gay parents are more likely to suffer all sorts of evils. Regnerus, who had his reputation shredded by a Michigan court, is cited in the state’s brief.

Meanwhile, just prior to the arguments beginning, Utah Attorney General Sean Reyes told the couples who brought the challenge that “I’m sorry that we’re causing you pain. … Sometime after the case, I hope we can sit down.”

Derek Kitchen, one of the plaintiffs, said it was a nice gesture on Reyes part, but the fact remains that “it is hard to hear people argue against us, because we are loving individuals who have committed ourselves to our partners emotionally and spiritually.”