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The Tenth Circuit Pulls Ahead

February 11, 2014

Three weeks ago, I wrote about the two same-sex marriage cases that are farthest along in the federal appeals process. One is an appeal by the state of Utah from a federal trial judge’s decision that Utah’s same-sex marriage ban is unconstitutional. The appeal is in the Court of Appeals for the Tenth Circuit. The other is an appeal by same-sex couples from a federal trial judge’s decision that Nevada’s same-sex marriage ban is constitutional. That appeal is  in the Court of Appeals for the Ninth Circuit.

The Nevada case was briefed first, with final briefs due by January 2, compared to the Utah case, where final briefs are not due until March 4. But the Utah case has already been scheduled for oral argument, on April 10 at a special session of the court of appeals to be held in Denver. The Nevada case has not been scheduled for argument.

There are two important developments to report. First, the Tenth Circuit Court of Appeals now has a second case – an appeal by the state of Oklahoma from a federal trial judge’s decision in favor of same-sex marriage. The court of appeals scheduled expedited briefing, with final briefs due by April 7, and has already scheduled oral argument, for another special session in Denver on April 17.

Recall that the Tenth Circuit Court of Appeals rejected Utah’s request for a stay of the trial judge’s decision pending appeal, apparently because the court of appeals did not think that Utah’s appeal is likely to succeed. The Supreme Court did grant a stay, but that presumably doesn’t change the court of appeals’ notion that Utah is unlikely to win the case.

The second development came yesterday – Nevada’s Democratic attorney general and Republican governor announced their conclusion that defense of the case is not legally viable, and their intention not to defend the appeal at oral argument. News accounts did not indicate that they withdrew Nevada’s appeal, and at this point it’s not clear how or even whether the appeal will proceed.

If the appeal does proceed, recall that the Ninth Circuit Court of Appeals was the federal appeals court that struck down California’s Proposition 8 two years ago this month. Although the court went to lengths to tailor its decision precisely to the situation in California, I never found that effort to be convincing.

I don’t want to be overly optimistic, but I’m saying that it’s probably about 50-50 that both the ninth and tenth circuit courts of appeals will sustain same-sex marriage rights. That would legalize same-sex marriage in most of the western half of the country, adding a dozen marriage equality states to today’s 17 (plus the District of Columbia). Some states might require further litigation to get them to recognize that the decision applies to them (think Wyoming, Idaho, Kansas), but basically, the jig would be up.

Furthermore, without conflicting appellate decisions on the question of marriage equality in light of the Supreme Court’s DOMA decision, the Supreme Court might well opt not to hear the inevitable appeals. I think we need to delay a Supreme Court decision only two years or so to ensure a positive result.

The light has appeared at the end of the tunnel.

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