Major same-sex marriage case heads to federal court hearing in Denver

Experts’ opinions are mixed on whether - or when - 10th Circuit ruling on Utah case could mean marriage equality for Colorado

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February 3, 2014 | 10:00 am
(Updated: February 7, 2014 | 2:15 pm)

byronwhitecourthouseUtah’s landmark federal court case over same-sex marriage is on its way to Denver, where the U.S. 10th Circuit Court of Appeals will hear the case at the Downtown Byron White courthouse in a process one legal expert said could take place in less than three months — and could potentially affect prospects for marriage equality in Colorado.

On Dec. 20 of last year, U.S. District Judge Robert Shelby stuck down Utah’s Amendment 3 defining marriage as a union between one man and one woman. Utah’s state government is appealing that decision to the 10th Circuit Court, which has jurisdiction over six states in the region, including Colorado, Kansas and  Oklahoma where there are state constitutional bans on same- sex marriage.

In 2006, Colorado voters passed Amendment 43, a referendum that prohibits same-sex couples from getting married here. The 10th Circuit Court’s final decision carries the possibility of overturning that amendment along with the bans in the other states.

“If the 10th Circuit were to issue a ruling that Utah’s marriage ban violates equal protection and due process, it is possible, and perhaps even likely, that that ruling would apply to Colorado’s [marriage ban] and other state’s marriage bans,” said Shannon Minter, co-counsel and Legal Director at the National Center for Lesbian Rights.

But Minter cautioned that the 10th Circuit could narrow its decision to apply only to Utah, leaving Amendment 43 intact.

“It depends on the basis of the court’s reasoning and how broadly the court were to rule. We do need to wait and see exactly how the case unfolds,” he said.

Minter cited California’s Proposition 8 as an example — the voter-approved measure which in 2008 banned same-sex marriage in California was declared unconstitutional in 2010 by District Court Chief Judge Vaughn Walker, and ultimately abolished for good in 2013 by the U.S. Supreme Court.

Walker’s ruling was “a very broad decision that would have applied to other states,” Minter said. “But then the 9th Circuit upheld Walker’s ruling on a much [more] narrow basis that only really applied to California.”

Mindy Barton, Legal Director at the GLBT Community Center of Colorado, said while the final ruling of the 10th Circuit might not directly affect Colorado couples, the decision would “provide guidance to the U.S. District Court of Colorado or Colorado state courts that may have equal marriage cases pending before them.”

Rebecca Brinkman and Margaret Burd, a lesbian couple living in Adams County, filed a lawsuit last October challenging Colorado’s same-sex marriage ban through Colorado state courts.

Ralph Ogden, the couple’s lawyer, said the 10th Circuit ruling would only have a peripheral influence on Colorado state courts since they do not fall directly under the jurisdiction of federal courts.

“The 10th Circuit opinion will have no precedential effect on a Colorado state judge,” he said. “It may have persuasive influence on him, but it’s not binding precedent. The only court whose decision is binding on state courts is the U.S. Supreme Court.”

But Ogden said if Shelby’s ruling is upheld, he will certainly cite the decision in his own briefs for the case. And even though the 10th Circuit has expedited the review of the Shelby case, it’s hard to predict when exactly a final decision will be made.

“That’s the wild card here,” said Nancy Leong, Assistant Professor at the University of Denver’s Sturm College of Law. She said it could be 3 to 5 months before a ruling by the 10th Circuit is issued. “I’m confident it will be less than that, but expedite means something different in every court and in every case.”

Leong added there is also the possibility of a rehearing by the 10th Circuit. “No matter which way the case is decided, the losing side, prior to an appeal to the U.S. Supreme Court, could ask for a rehearing en banc. What that means is a rehearing by the whole 10th Circuit.”

Though cases heard en banc are not common, the possibility means further delays for same-sex couples in Utah caught in legal limbo. More than 1,300 same-sex couples were issued marriage licenses throughout Utah’s 29 counties before the U. S. Supreme Court issued a stay on Jan. 6 which brought their validity into question.

U.S. Attorney General Eric Holder announced that the federal government will recognize those couples married in Utah before the stay was put in place, but Utah Gov. Gary Herbert pronounced Utah would not recognize those marriages on the state level.

“Every day that goes by that couples can’t marry, or their marriages aren’t recognized,” said Minter, “it puts people at risk of very serious harm, their families being stigmatized and demeaned and treated unequally.”

It was ten years ago that 66 percent of Utahns voted to add Amendment 3 to the state’s constitution, banning not only same-sex marriage, but denying gay couples the state-level protections a civil union or a domestic partnership would provide.

The Salt Lake Tribune reported last month that Utah is now split on the question of marriage equality, with 48 percent of those polled stating same-sex couples should be allowed to receive a state-issued marriage license, while the same percentage was against.

In addition, a poll last year by Public Policy Polling found 53 percent of Colorado voters think same-sex marriage should be legal. Eight years ago, 56 percent of Coloradans voted to adopt Amendment 43, banning same-sex marriages, to the state’s constitution.

“I really do think it’s just a matter of people seeing the human side of this issue,” said Minter on the shift in support for same-sex marriage, “recognizing that it’s about love and commitment and families — something that everyone can understand that really resonates with everybody.”

Whatever the outcome may be with the 10th Circuit, the losing party will likely ask the U.S. Supreme Court to review the decision. The high court will either agree to review the case or allow the ruling of the lower court to stand.

If the Supreme Court agrees to review the 10th Circuit’s ruling, it’s unclear if the final decision would extend beyond same-sex couples in Utah.

“With court cases and litigation, it’s good to be cautious,” said Minter. “One never knows exactly what a court might do. For example, many people thought the Court might, in the Prop. 8 case, reach that issue, but they did not.”

The 10th Circuit will also be asked to rule on Oklahoma’s same-sex marriage ban, which was overturned by U.S. District Judge Terence Kern on Jan. 14 — another case in the appeals court’s jurisdiction that the higher court will review. Minter said he does not expect the Utah case and the Oklahoma case to be merged by the federal appellate court.

“It’s vital that right now we do the important public education work of talking to Coloradans across the state about why marriage matters to our families,” said Dave Montez, Executive Director of One Colorado. “So we know we will do the work necessary to get marriage equality across the finish line here in Colorado. It’s not a question of ‘if,’ only a matter of ‘when’ and ‘how.’”

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