Three judges on the 10th U.S. Circuit Court of Appeals heard oral arguments in Denver on Thursday in Oklahoma’s same-sex marriage case. The same judges heard arguments on April 10 in Utah’s same-sex marriage case, which is very similar to the one from Oklahoma. In both, a federal judge struck down a state ban on same-sex marriage on 14th Amendment grounds that the bans violated the equal protection rights of same-sex couples.
The federal appeals court is hearing both cases on a fast track — though there is no deadline for a decision — and whichever side loses is expected to appeal to the U.S. Supreme Court.
These observations are based on reviews of the audio recordings of the oral arguments in both cases. The recordings are posted on the 10th Circuit court’s website.
1. Judge Jerome Holmes — one of two Republican nominees hearing the cases — seems convinced that the bans must clear a higher bar than the one used by the district judges who struck them down.
That is very significant and is an encouraging sign for the same-sex couples who were denied marriage licenses in Oklahoma and Utah.
The federal judges who struck down the bans reviewed them under the lowest standard for 14th Amendment cases — whether they had a rational basis connected to a legitimate government interest.
Holmes, however, in both the Utah and Oklahoma case arguments, asked repeatedly why the discrimination in the same-sex marriage bans isn’t the same as gender discrimination. If the court reviewed the bans at that level of intermediate scrutiny, the bans would have to meet a tougher burden to survive.
On Thursday, Holmes said the ban was “entirely predicated on sex, on gender.”
Jim Campbell, an attorney with the Christian legal group representing the Tulsa County court clerk in the case, said the Oklahoma ban wasn’t sex discrimination because it treated both genders the same — that is, it doesn’t allow two men or two women to marry.
Holmes is likely the swing vote in the case and he appears to believe that the bans could survive the lowest level of review on rational basis. Therefore, for the same-sex couples to win, Holmes will have to determine that the bans must be scrutinized under a tougher standard than rational basis.
Holmes, the first African American on the 10th Circuit court, was nominated in 2006 by former President George W. Bush. Some civil rights groups tried to torpedo the nomination because of comments Holmes had made against affirmative action.
2. The court’s decision in the case is likely to address child rearing.
For the second week, some of the judges engaged in questions about same-sex couples raising children. The questions go to the issue of whether Oklahoma has a legitimate interest in reserving marriage for heterosexual couples who can provide children with both biological parents. Campbell, the attorney for the side fighting against same-sex marriage, pointed to briefs filed in the case arguing that the redefinition of marriage could harm children. Holmes interjected that the American Sociological Association had filed a brief arguing that the two most significant factors in child rearing were stability and parental resources, not gender.
3. Gay Phillips and Susan Barton face an uphill battle in this litigation.
There are two lesbian couples in the Oklahoma case. Mary Bishop and Sharon Baldwin sued the Tulsa County court clerk because they were denied a marriage license. And that is really the central question in the Oklahoma and Utah cases — whether states can ban same-sex couples from getting married.
Phillips and Barton were married in California and are suing the court clerk under a separate part of the Oklahoma constitutional ban — the section that denies state recognition to same-sex couples married in another state.
U.S. District Judge Terence Kern, of Tulsa, ruled in January that Phillips and Barton were suing the wrong person because the county court clerk has no authority to recognize out-of-state marriages.
Don Holladay, the Norman attorney representing the couples, had to spend most of his argument time on Thursday explaining why the court clerk could recognize those marriages.
The judges seemed skeptical that the court clerk had anything to do with.
And one judge said the couple had no real legal issue because the lack of recognition hadn’t caused a specific injury. When the couple has a concrete complaint, he said, they could sue the government official most closely related to that injury.
The Oklahoma case, first filed in 2004, got bogged down for years over the issue of what officials should be sued. Originally, the couples sued the governor and attorney general, but the 10th Circuit court ruled that they had no authority over marriage licenses. So the original suit was refashioned, naming the Tulsa County court clerk, who issues marriage licenses.
The trouble for the 10th Circuit court in this situation is that it’s the one that effectively pointed to the Tulsa County court clerk as the proper person to sue. So does it have to reverse itself now and say the clerk wasn’t the right person for Phillips and Barton to sue?
The fact that the couple doesn’t have a specific injury arising from the lack of recognition of the marriage may give the court a way to deny standing to the couple without reversing itself.