April 10, 2014
The Tenth Circuit Court of Appeals heard arguments today in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban. The hearing lasted over an hour – the judges on the panel were active questioners. Throughout the proceedings, it seemed like only one judge – Paul Kelly, appointed by President George H. W. Bush, was in favor of the state’s ban. Judge Kelly saved most of his questions for Peggy Tomsic, the plaintiffs’ lawyer. At one point, the judge seemed to suggest that he believes a ruling in favor of same-sex marriage would lead to polygamy.
As the hearing opened, Gene Schaerr argued first for the state. Almost immediately, he was pressed by Judge Jerome Holmes, an appointee of President George W. Bush, to explain why this case is different from Loving v. Virginia, the case that struck down state bans on interracial marriage. Judge Holmes suggested that this case, like Loving, turns on a classification of people into groups, asking “why doesn’t it matter” that the ban is based on that same sort of classification. He told Schaerr that interracial marriage bans made mixed-race couples an “other”, and he pointed out that the Supreme Court in United States v. Windsor used similar language.
When the questioning turned to the issue of whether marriage is a fundamental right, and whether same-sex marriage is included in that fundamental right or not, Judge Carlos Lucero expressed concern about how narrowly-construed the description of the fundamental right should be. He asked whether it’s not just a fundamental right to marriage, rather than to “same-sex marriage.” Schaerr responded that same-sex marriage isn’t deeply rooted in this country’s traditions, and he argued that the concept of marriage as a fundamental right stems from the belief that it’s essential to the human race’s survival.
At that point, Judge Holmes joined Lucero, asking Schaerr, “why does it matter who’s claiming the right?”
Schaerr did press one point repeatedly throughout the argument: he argued that before the courts can determine the level of judicial scrutiny, or whether a fundamental right is at stake, judges should consider “what marriage is.” He argued that the whole point of Windsor was that the Supreme Court shouldn’t decide the issue of same-sex marriage.
Schaerr tried to suggest that same-sex marriage and polygamy are the same, but Judge Lucero stopped him, suggesting “there will be plenty of time to talk about polygamy some other day, but let’s talk about gay marriage today.”
When Schaerr quoted from Maggie Gallagher, on the subject of fatherhood and fatherlessness, Lucero asked if the state believes divorce is the problem, or if same-sex marriage is the problem.
At one point, Schaerr suggested to the court that same-sex marriage tells heterosexual men “we don’t need you” to be fathers.
In the final minutes of his opening argument, Schaerr tried to discuss parenting as a rationale for the ban, and the discussion went badly for his side. He was asked by Judge Holmes about the state’s letter, filed yesterday, addressing Mark Regnerus’ research. The letter had appeared to distance the state from Regnerus’ findings, seemingly leaving most of their legal arguments for the ban in shambles. Holmes asked “what’s left” of the state’s reliance on Regnerus and the state’s parenting rationale, if they’re backing away from his theory.
Reacting to the question, Schaerr said that the science on these issues in inconclusive, and so there’s no proof for either theory.
Holmes then asked, if the science is inconclusive, and the judges decide that laws that classify people on the basis of their sexual orientation warrant a heightened level of judicial scrutiny, doesn’t the state lose?
When Peggy Tomsic got up to argue, the discussion focused on the issue of what level of judicial scrutiny should apply. The parties debated on whether the Tenth Circuit is barred from applying heightened scrutiny because of binding precedent: Tomsic said the older decision doesn’t mean what the state says it means. Even so, she suggested, rational basis isn’t supposed to be toothless, there is supposed to be review and specifically the courts have to find a nexus between the state’s interest and the law at issue.
Judge Kelly argued that there were accusations that legislators were “mean-spirited” and “bigoted”, and when Tomsic said animus as a legal term doesn’t mean exactly that, he said: “sure it does.”
One issue that found its way into the hearing is the issue of Article III standing. Judge Holmes said a few times that there may not be standing in the case. The Tenth Circuit had sent the Oklahoma same-sex marriage case back to the lower court at one point in the past after determining that since only the governor and attorney general were sued, there was no standing. Here, the same issue arises: only those two people were sued.
Tomsic argued that here, the state officials can control the actions of county clerks – the officials set state policy on recognizing marriages for different types of benefits.
Tomsic seemed to get less questions than Schaerr, though the judges were skeptical of points in both sides’ presentations.
During one back-and-forth Judges Lucero and Kelly almost seemed to be arguing with each other. Judge Kelly had seemed to suggest that a state’s public policy might be more important than a constitutional right, and Judge Lucero called that proposition “remarkable.”
On rebuttal, Judge Lucero again prodded Schaerr, saying at one point that his view of states’ rights “sounds like Dred Scott.
Next week, the same panel hears arguments in Bishop v. Smith, the challenge to Oklahoma’s same-sex marriage ban.