A crack in legal unanimity for gay marriage

By NICHOLAS RICCARDI, AP Published: June 26, 2014
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DENVER— Wednesday’s gay marriage ruling contained two historic firsts: It was the first appellate decision for gay marriage since the U.S. Supreme Court struck down the Defense of Marriage Law exactly one year ago, and it also marked the first time since then a federal judge has argued for keeping a state ban on same sex marriages.

Judge Paul J. Kelly, Jr. was in the minority in his opinion as the two other judges on the 10th Circuit Court of Appeals panel found the U.S. Constitution protects the rights of gay couples to marry. Kelly has broken the string of 16 state and federal judges who sided with gay marriage advocates in cases across the country over the past year.

Legal observers and friends both say that’s not a surprise. “He’s not afraid to be the only guy taking a position if he believes it’s correct,” said Hal Stratton, a former New Mexico Attorney General who served with Kelly in the state legislature in the late 1970s.

Kelly, 73, is a Republican and appointee of President George H.W. Bush. His highest-profile case was when he presided over Oklahoma City bomber Timothy McVeigh’s appeal. U.S. marshals accompanied him and his wife on an airplane from Albuquerque for the hearings in Denver, where the circuit is based. Kelly is known for his fondness for bow ties, withering questioning at oral arguments and willingness to rule against law enforcement and for civil rights. On Wednesday, in his 21-page dissent, Kelly warned that his colleagues were overreaching in striking down Utah’s voter-approved gay marriage ban.

Creating a national mandate for gay marriage, even in states where it is unpopular, “turns the notion of a limited national government on its head,” he wrote, adding later: “We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment.”

The dissent heartened gay marriage opponents, who saw a hope of ending their year-long losing streak and puncturing the aura of inevitability that now surrounds same-sex marriage.

“We are at a new level and the Courts of Appeal tend to be more thoughtful and deliberate than the trial courts,” said National Organization for Marriage president John Eastman, saying he expects more opinions like Kelly’s.

It did not surprise Blain Myhre, a Denver appellate attorney who has argued multiple cases before Kelly. “He may have a more limited view of the role of the federal courts than a more liberal judge,” Myhre said. But, he added, “I don’t view him as an ideologue.”