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The Tenth Shall Be First

June 25, 2014

The federal Court of Appeals for the Tenth Circuit today rejected Utah’s prohibition against same-sex marriage. After a long series of federal trial-level decisions rejecting same-sex marriage bans, this was the first federal appellate court ruling on the question since the Supreme Court struck down the Defense of Marriage Act last June. The name of the case is Kitchen v. Herbert.

The decision was not unanimous. Judge Paul Kelly, a George H.W. Bush appointee, would have upheld the same-sex marriage ban. Judges Carlos Lucero, a Clinton appointee, and Judge Jerome Holmes, a George W. Bush appointee, out-voted Judge Kelly.

In addition to Utah, the Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. New Mexico already permits same-sex marriage, so today’s decision makes no change there. Even in the other five states, change will have to wait – the court stayed its ruling pending possible review by the U.S. Supreme Court.

The losing defendants, the governor and attorney general of Utah, have 90 days to ask the Supreme Court to consider the case. Opposition papers are then due 30 days later. The Court can decide whether to hear the case any time after that.

Although public opinion in Utah has shifted dramatically this year, and even the Mormon church has softened its opposition, a majority still oppose same-sex marriage. Therefore, unlike Pennsylvania’s Republican Governor Tom Corbett, who chose not to appeal when his state’s marriage ban was struck down, I expect that Utah’s Republican Governor Gary Herbert will appeal.

But I don’t think the Supreme Court is going to be in any hurry to consider this case. Justice Anthony Kennedy, in his majority opinion in the DOMA case, promised that the DOMA decision did not pre-determine the outcome of the same-sex marriage issue. In his dissenting opinion, Justice Antonin Scalia pilloried that disclaimer, and of course Justice Scalia was right. I think Justice Kennedy is going to want to have more than one court of appeals decision on his side before he goes there.

In any event, the Supreme Court often decides to get involved only where there is a “conflict in the circuits” – meaning different outcomes from different federal courts of appeals. Cases are already pending in five other courts of appeals – for the fourth, fifth, sixth, seventh and ninth circuits. I would expect the Supreme Court to put the Kitchen v. Herbert decision on hold for awhile, to see how some of the other courts of appeals rule.

I’ve argued that a short delay in Supreme Court review would be in the interests of marriage equality. The Court tends to enter into the big social issues only as the country is nearing consensus. I’ve pointed out that the Court did not strike down bans on interracial marriage until only 16 states still had them, and did not strike down sodomy laws until only 14 states still had them. As of now, 31 states still ban same-sex marriage.

Another Tenth Circuit case, from Oklahoma, was argued on April 17. A Virginia case was argued in the Fourth Circuit Court of Appeals on May 13. Cases from four states will be argued on August 6 in the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee. And an Idaho case is tentatively scheduled for argument in the Ninth Circuit during the week of September 8. State court litigation is also pending in a number of states.

Today’s decision was a little on the fast side for federal appeals courts – only 76 days from argument to decision. If some of the other cases take longer to decide, it could easily be January or February before the Supreme Court decides whether to consider the same-sex marriage issue. At that point, it may not be possible to get briefing done and argument scheduled in time for a decision before the Court adjourns for the summer of 2015. That would put the decision off to the the 2015 – 2016 session, which I think at least several justices will want to do, and which I think will enhance the chances for success.


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