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to Section One | to Arts & Entertainment
posted Friday, April 11 2014 - Volume 42 Issue 15
Tenth Circuit said to be split on Utah marriage case
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Tenth Circuit said to be split on Utah marriage case

by Mike Andrew - SGN Staff Writer

Journalists covering the Tenth Circuit Court hearing of Kitchen v. Herbert - the Utah marriage equality case - report that the three-judge panel seems to be split on the crucial legal issues.

The appeals court heard oral arguments April 10. Federal District Judge Robert Shelby ruled on December 20 that Utah's ban on same-sex marriages violates the equal protection and due process clauses of the U.S. Constitution.

More than 1,300 couples were married in Utah before the Tenth Circuit issued a stay in the case. State officials admit the marriages are legal, but will not accord the couples legal marriage rights pending appeal. U.S. Attorney General Eric Holder said the federal government would recognize the marriages, however.

Although no recordings or photos were allowed in the hearing, reporters exiting the court chambers said the justices appeared to be split on the case.

'First take: A split 10th Circuit panel heard today's arguments about Utah's marriage ban, with two judges leaning toward striking the ban,' BuzzFeed's Chris Geidner Tweeted.

'Lucero is totally on board w plaintiffs, Kelly is leaning toward the state, & Holmes is leaning toward heightened scrutiny based on sex,' Geidner added.

Justice Carlos Lucero was appointed by Bill Clinton. Justices Paul Kelly and Jerome Holmes were appointed by George H.W. Bush and George W. Bush, respectively.

Holmes, said to be leaning toward striking the ban on same-sex marriage on the basis of his questions and comments in the April 10 hearing, has a conservative record on the appeals court, but he astonished court-watchers by refusing to stay Judge Shelby's ruling in the Utah case.

'Heightened scrutiny based on sex' - if Holmes is indeed leaning towards that finding -means that Utah's law could be declared unconstitutional unless the state could show some compelling interest in preventing two men or two women from getting married.

That line of reasoning would seem compatible with the arguments of plaintiffs' attorney Peggy Tomsic, who argued that the marriage ban violates the rights of one class of citizens, namely same sex couples.

Gene Schaerr, the attorney representing the state of Utah, told justices that children raised by someone other than their natural parents have a higher rate of criminal behavior.

Utah Attorney General Sean Reyes, whose office did not handle the appeal, said the federalism argument will be the key to the court's decision - in other words, that individual states have the right to determine what constitutes a valid marriage.

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