Maybe The Court Winning Streak For Marriage Equality Will Remain Unbroken After All

gay-marriageThursday 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.

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  • hyhybt

    Is it pure chance that they got the exact same judges, or was that a choice on anyone’s part?

  • Mezaien

    Only Democratic judges, can judge in a Democratic country.

  • Cam

    The Supreme Court already voided the Procreation argument. And the Michigan already stated that the studies used to state that gay marriage was harmful were fake and not allowable in court so the State of Utah had to remove them from their argument, and that was 90% of their argument.

    There is no way the court can find for the State of OK or Utah on this and any judge that does should be looked at very closely because they would have blatantly broken from the Supreme Court ruling on Procreation just a few months ago.

  • aequalitasTN

    @hyhybt: It was deliberate. Because this is such a polarizing issue, the circuit wanted to be seen as consistent either way they ruled. As such, the same panel was chosen to insure consistency within the circuit, as they would most likely rule the same way since the cases are so similar, whereas a different panel may have ruled differently on one of the cases than the first panel if they split them among 2 panels. I am curious to see if the parties appeal directly to SCOTUS or appeal to the 10th Circuit en banc. Either way, the match is set for SCOTUS because it is almost certain the the 5th Circuit will reverse the District court in De Leon v. Perry, and I am fairly certain that the the 4th Circuit will uphold Wright-Allen’s decision in Bostic v. Schaefer, creating the inevitable conflict in the Circuits. The first indication that we will have that we have won is going to be if Kennedy reads the Opinion of the Court the day it is released. It is interesting to note, however, that the granted stay in Herbert v. Kitchen expires once the appeal is done in the 10th circuit; it will be interesting to see if the 10th continues the stay, or even more interesting would be if SCOTUS decided not to continue the stay should the 10th decline to continue it pending further appeal, and the state appealed back to SCOTUS for an extension.

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