The big day is here. The first federal appellate case post-Windsor made its way through oral arguments this morning, and it was not without its own wave of drama.
Even before the arguments began, Utah officials backtracked on authority used in their briefs. Then, in oral arguments, the panel seemed to be deeply divided, with two judges sticking to their predicted ideological lines, and a third serving as the wildcard.
As the first of a coming wave of same-sex marriage appeals in this circuit, and many other circuit courts of appeal, this case is important as authority for the remaining cases, as well as a possible vehicle for a Supreme Court appeal.
About That Study ... Ignore It
Yesterday, the State of Utah's Attorney General Office filed a "supplemental letter" with the court, addressing a study that the state's brief cited twice in footnotes in its opening brief. The study purported to address "whether same-sex parenting produces child outcomes that are comparable to man-woman parenting," but has since been widely discredited.
In the letter, the state argued:
[Our] principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.
Okay, so why was this cited then? The study, per the letter, didn't even measure children raised in same-sex households, but instead examined children raised by a parent who had engaged in a same-sex relationship at some point.
The state basically said "never mind, ignore those footnotes." That's not the best way to start an appeal.
The oral arguments were held this morning, at 10:00 a.m. local time, and the recaps are pointing to a deeply divided panel.
Judge Paul Kelly Jr., appointed by former president George H.W. Bush, appeared to side with the state, noting, "You are just taking the position they are wrong on this. .... We'll just ignore what the people have decided and the Legislature has done," reports The Associated Press.
Judge Carlos Lucero, appointed by Bill Clinton, seemed to be leaning the other way, comparing the case to Dred Scott and stating, "To argue that public policy can trump a declared constitutional right would be a remarkable proposition."
That leaves Judge Jerome A. Holmes, a George W. Bush appointee, as the swing vote. At one point, according to USA Today, he compared the bans to interracial marriage bans, but at another point, he pondered the rational basis test and whether gays have the same protected status as race and gender.
Interestingly enough, neighboring Ninth Circuit recently addressed protections for sexual orientation in a Batson case involving a gay juror. The court's application of protections and heightened scrutiny led Nevada state officials to drop their defense of that state's same-sex marriage ban (though other parties are still defending the law).
- Herbert v. Kitchen (Oral Argument Recordings -- Tenth Circuit)
- Utah Gay Marriage Opponents Drop Debunked Research, Reduce Argument to Gibberish (Slate)
- Do Attorneys General Have the Right to Decline to Defend Laws? (FindLaw's Strategist Blog)