A Denver-based federal appeals court is preparing to hear arguments about whether to uphold same-sex marriage bans in two states, and all eyes are on the three judges sitting on the panel.
Two were appointed by Republicans, one by a Democrat, but court watchers say it’s best not to read too much into their political leanings.
One thing is practically certain, however: The next stop will be the U.S. Supreme Court.
The 10th U.S. Circuit Court of Appeals on Thursday will become the first of several federal appeals courts to hear oral arguments in a gay marriage case.
“If I was a lawyer for (gay or lesbian) plaintiffs, I would be pretty happy with the draw,” said Nancy Leong, a constitutional law professor at the University of Denver’s Sturm College of Law, referring to the judges selected for the panel. The biggest mystery may be whether the vote is unanimous, she added.
At Thursday’s hearing on Utah’s ban, each side will have up to 30 minutes each to make their arguments, and a decision could take months to deliver. On April 17, oral arguments will begin in a similar Oklahoma case.
Dozens of amicus briefs have been filed in both cases. Some have argued that the bans violate the constitutional rights of gays and lesbians, while others say that homes run by two biological parents are better suited for kids than those run by same-sex couples.
Leong predicts an unexpected 10th Circuit decision striking down the gay marriage bans because of a surprising recent court decision by one of the Republican-appointed judges.
President George H.W. Bush had appointed University of Notre Dame graduate Paul J. Kelly Jr., and Bush’s son George W. Bush selected Jerome Holmes, who has an impeccable conservative track record in writing death penalty and affirmative action case law, Leong said.
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But Holmes, the first black jurist to serve on the 10th Circuit, did something recently that stunned court watchers: When conservative stronghold Utah petitioned the 10th Circuit to stay a federal judge’s decision striking down that state’s gay rights ban, Holmes said no.
The move allowed 1,335 gay and lesbian couples to marry over a period of 17 days before the Supreme Court stayed the ruling by federal Judge Robert Shelby.
“A lot of people were surprised with that. If Holmes ultimately intended to hold that the same-sex marriage ban was constitutional, then it would be unusual for him to let these marriages happen,” Leong said.
The third judge on the 10th Circuit panel is Carlos F. Lucero, a Colorado jurist who graduated and later taught at Adams State College in Alamosa. He was appointed by President Bill Clinton in 1995.
“Speaking broadly, I think he is more likely to strike down same-sex marriage bans,” Leong said.
Similar appeals filed by states across the country are winding through different circuit courts on the gay marriage issue.
Even when one side of the case loses, they have the right to request an “en banc” decision by all 10th Circuit court judges, Leong said. That may give defendant states a better chance of winning a decision in the circuit, which is fairly evenly split with Republican and Democratic judicial appointments.
Leong said she can’t recall an issue that has generated the kind of coordinated legal activity that the gay marriage issue has triggered. The closest case was Loving vs. Virginia, which went before the U.S. Supreme Court in 1967.
In that case, the Supreme Court struck down Virginia’s prohibition against interracial marriages. It was an issue that struck down similar bans in 17 states, mostly in the South.
A loss in the 10th Circuit for either side may be the quickest way to push the issue before the Supreme Court, because the high court often takes cases in which different circuit courts have split decisions, Leong said.
A 10th Circuit decision only establishes law in Colorado, Utah, Oklahoma, Kansas, Wyoming and New Mexico, she said, but a Supreme Court ruling becomes the “law of the land” across the United States.
Kirk Mitchell: 303-954-1206, denverpost.com/coldcases or twitter.com/kmitchelldp
