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.”


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  • carey579

    Winning Streak?

    Three more countries criminalised LGBTs between the time gay marriage was legalised and finally came into effect in the UK.

    It’s literally taking one step forward and…

  • Lvng1tor

    @carey579: I think it’s safe to assume he was speaking about here in America since that’s what the article was about.

  • litper

    It’s obvious it’ll be 2-1 win for equality, stop this panic, you wusses

  • andy_d

    IF the decision goes against same sex marriage (and I pray it DOES NOT), please keep in mind that the decision was made by a panel. The plaintiffs have the right to have the case heard “en banc” – meaning by a full bank of the Federal Circuit Judges. The next step would be taking it to the Supreme Court.

  • samwise343

    People, don’t worry about it. Win or lose at this point, the matter will go to the Supreme Court, no matter what. Justice Kennedy will take our side, making it a 5-4 decision. He bat down Utah’s discrimination law (Romer), gave us the right to sodomize each other (Lawrence), and he will most assuredly extend us the right to marry. Bank on it.

  • DarkZephyr

    “gave us the right to sodomize each other”

    Did you really feel the need to use the term “sodomize”? That is an absurd, archaic term that has its origins in religious hatred.

  • bobbyjoe

    Utah Attorney General Sean Reyes: “I’m sorry that we’re causing you pain. … Sometime after the case, I hope we can sit down.”

    The couples in this case must have a lot more patience than I do because I sure would’ve told that creep where he could sit.

    What makes Reyes any different than the bigots who did all they could to deny rights to any other minority group? Oh, gee, he feels bad about it. Well, boo freakin’ hoo. I’ll bet he feels bad about it ’cause he’s sensing which way the winds of history are blowing in our country and he doesn’t want to end up stinking eternally like a George Wallace. But being “sorry” for the pain he’s helping to inflict shouldn’t get him off the hook in the eyes of history.

  • Dakotahgeo

    Based on what has happened in the past and what is now transpiring, the entire Marriage Inequality issue may well be squelched and Marriage Equality will finally become the law of the land. We can only hope this is the outcome.

  • Ben Dover

    @DarkZephyr: Samwise was making a satirical point, I thought, since the law Kennedy voted to strike down actually DID use the word “sodomy”? I lol’d.

    Well, sodomy may be a term of the past, but it’s still fun no matter what you call it. As Shakespeare said, a rose by any other name…

  • Larry

    Well these votes against LGBT people are the first time this country has voted to take away a class of citizen’s rights. We have always granted equality rights TO a new group. It’s sad that LGBT rights are even an issue, just like it was for women and minorities.

  • aequalitasTN

    @bobbyjoe: I have to agree with you.. I nearly threw my phone across the room when I read what he said to them. I did, however, think the perfect comeback would have been “We’ll invite you to the reception; be sure to bring a state check for our legal expenses.”

    You know, you are exactly right about him too: he will ho down in history just like the other bigots. Anyone here can mark my words too, when SCOTUS rules, and they will, there will be state government officials that will behave exactly like George Wallace and Orval Faubus after Brown v. Board, and like each of those situations, it will take the President cramming the ruling down their throat by federalizing the state national guard or using the US Marshals to force the issuance of the marriage licenses. Finally, when it is all over, and they accept defeat and retire to their caves to lick their wounds, we will have won. Then the religious fanatic right-wingers will find a new group to bully, and the whole process will start all over again.

  • Cam

    The state of Utah had to throw out most of their argument because a Federal Judge in Michigan deemed the same studies they were using as false and laughable.

  • Merv

    I think we’re WAY overconfident. We have a bare majority on the Supreme Court. One illness or death could change everything, especially if the vacancy happens with a Republican president. Even with the present makeup, I wouldn’t be all that surprised by a ruling not 100% favorable. We could be stuck at the current number of states for a while. Or, maybe we only get recognition of out-of-state marriages.

  • AxelDC

    Utah had to trash its own case for relying to heavily on the discredited Regnerus study. At first they shrugged off the Michigan Federal court decision, but then realized that their own antigay arguments completely relied on his research.

    If the 10th District sides with Utah, it will not be based on solid legal arguments. Their arguments boil down to: we as a state have a right to not like gays. That flies in the face of Lawrence v. Texas (2003) and Windsor v US (2013).

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