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A supporter of same-sex marriage.
On April 10, 2014, a three-judge panel of the Tenth Circuit Court of Appeals convened in Denver to hear arguments in the case of Kitchen v. Herbert, the challenge to Utah's ban on same-sex marriage. Although questions posed during the oral argument of an appellate case are not necessarily a good indicator of how individual judges will ultimately vote, the judges appeared to be sharply divided in sympathy. Most observers of the hearing predicted that the panel is likely to rule in favor of marriage equality on a 2-1 split, with Judges Carlos Lucero and Jerome A. Holmes ruling in favor of the plaintiffs and Judge Paul J. Kelly Jr. deciding in favor of the defendants.
The panel is reviewing the decision handed down on December 20, 2013 by U.S. District Judge Robert Shelby. Relying heavily on the U.S. Supreme Court's rulings in Windsor v. U.S.A. and Lawrence v. Texas, Shelby declared Utah's ban on same-sex marriage unconstitutional on the grounds that it violates the due process and equal protection guarantees of the United States Constitution. "The state's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason," he asserted.
In the hearing on April 10, Judge Lucero compared Utah's argument that the ban should be upheld to the Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.
"The law does not allow the type of discriminatory behavior that is at issue in these type of cases," Lucero said.
In contrast Judge Kelly, who seemed to set more store by the dissents of Supreme Court Justices Antonio Scalia and Joseph Alito in Windsor than in the majority opinion authored by Justice Anthony Kennedy, suggested that Utah's voters have the right to reaffirm the tradition of heterosexual marriage.
"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," Kelly told attorney Peggy Tomsic, who represented the plaintiffs.
The swing vote in the case appears to be Judge Jerome A. Holmes, who compared Utah's same-sex marriage ban to Virginia's ban on interracial marriages, which the Supreme Court struck down in 1967 in the landmark case Loving v. Virginia.
Much of the questioning concerned the level of scrutiny the case should be accorded--rational, heightened, or strict. Most observers believe that the ban could not survive a heightened or strict level of scrutiny and may not even pass muster under rational basis review.
On April 17, 2014, the same three-judge panel will hear an appeal of the ruling handed down in January by U.S. District Judge Terence Kern invalidating Oklahoma's same-sex marriage ban. After concluding that the ban on same-sex marriage was motivated by impermissible "moral disapproval" of homosexuality and furthers no legitimate state interest, Judge Kern declared it unconstitutional on equal protection grounds. He said the ban is "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."
Freedom to Marry's Evan Wolfson issued a statement after the hearing. "Today marked a new chapter in the campaign to win the freedom to marry. We now begin a wave of federal appellate arguments and rulings that set the stage for national resolution by the Supreme Court. Once again it became clear in the light of a courtroom that there is no good reason for perpetuating the denial of the freedom to marry. We hope the 10th Circuit affirms what so many lower courts and a majority of the American people have concluded: it's time to live up to the constitutional command of equality and end marriage discrimination in the United States."
The Tenth Circuit has posted an audio file of the hearing, which may be found here.
The video below, from the Associated Press, reports on a rally held on Thursday night at the federal courthouse in Denver in support of same-sex marriage.