History was made in Denver

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It is almost 10:00 AM on Thursday, April 10, 2014.  One row in front of me Moudi Sbeity sit with his arm around the shoulder of Derek Kitchen.  Next to them, in a similar pose, Kate Call holds Karen Archer.  Sitting next to Kody Partridge, Laurie Wood glances back with an optimistic smile and raises crossed fingers for luck.

As these six people, plaintiffs in the case of Kitchen v. Herbert, sat in the courtroom and waited for the panel of Tenth Circuit Court of Appeals judges to begin the hearing they appeared happy and hopeful, but the tension in the room was palpable.  This hearing, and the ruling that will stem from it, is deeply personal to these six plaintiffs, and to thousands of other Utahns sitting in legal limbo awaiting it.

The story begins in early 2013, when Mark Lawrence called a meeting in Salt Lake City and proposed the idea that a lawsuit be filed against the State of Utah to overturn Utah’s 10-year old Amendment 3, which forever prohibits not just same-sex marriage but also any other relationship with a substantially equivalent legal effect.

From that meeting, Restore Our Humanity was born.  Currently pending IRS approval as a 501(c)3 non-profit, Restore was responsible for hiring the attorneys (Magleby & Greenwood of Salt Lake City) and for bringing the plaintiffs together.  They have assumed financial responsibility for the case and are actively raising funds to meet those obligations.  The case, now known as Kitchen v. Herbert, was filed in the United States District Court for Utah in Salt Lake City on March 25, 2013.

The case reached national prominence on December 20, 2013, when Judge Robert Shelby issued summary judgment.  He ruled that Amendment 3 and the related laws that prohibit same-sex marriage were in violation of the equal protection clause of the United States Constitution, and were therefore struck down.  The state, after bumbling between courts, was finally granted a stay by the United States Supreme Court on January 6, 2014, after some 1,200 Utah couples obtained and exercises legal marriage licenses.

The state then filed an appeal and hired outside counsel, Gene Schaerr, to represent Utah in the appeal.   The appeal, as with the original defense, focused on the argument that the State of Utah has a vested interest in defending “traditional marriage,” or marriage between one man and one woman.  The state further argued that the voters of Utah have the unquestioned right to define marriage in accordance with their own views, exclusive of the Constitution and federal judges.

Interestingly, the night before the appeals hearing the state backed down from its claim that same-sex households produce inferior child outcomes.  Schaerr submitted a letter to the court retracting the state’s use of the often-debunked Regnerus study.  Schaerr wrote, “the Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.”

He took that a step further during his oral argument, acknowledging to the panel that there is no conclusive evidence, even outside the Regnerus study, to suggest that same-sex households produce inferior child outcomes.   He used that as the basis for his argument that the state doesn’t need conclusive evidence on the subject.  Instead, he argued, the state has the right to define marriage in this manner in order to reduce any risk that might be possible for inferior child outcomes to occur.

Schaerr went on to argue that removing men from the family equation, in the case of lesbian families, sends a signal to society that men are not needed.  That signal, he argued, would result in men abandoning their children and families.  He failed to explain exactly how that would happen, and none of the judges inquired.

Schaerr’s final argument was to reject the Supreme Court precedent established in the 1967 case of Loving v. Virginia.  In Loving, the court ruled not only that laws prohibiting interracial marriage were unconstitutional, it also definitively asserted marriage as a “fundamental right.”   Schaerr argued that this precedent did not apply to the case at bar because Loving was about a marriage between a man and a woman, and that fit within the traditional definition of marriage.    He further argued that the court couldn’t grant same-sex marriage the same status as a “fundamental right” until they defined marriage.  That right, he claimed, belongs exclusively to the voters of Utah.

The plaintiffs’ attorney, Peggy Tomsic, began her argument with an assertion that the 14th Amendment to the United States Constitution is the issue, and that is ensures that no state can treat American citizens unequally.  “Every state,” she said, “is bound by the 14th Amendment’s equal protection and due process clauses.”

Before she could get too deeply into her oral argument, the panel interrupted her and asked what legal standard should be applied to the case.  Tomsic, countering Schaerr’s assertion of a rational basis standard, argued that this case should be looked at under heightened scrutiny.  Based upon the reaction of the judges, it appears that this legal technicality could be very important in the final ruling.  Under a heightened scrutiny rationale, the judges seemed already convinced that the plaintiffs would prevail.  If that standard was reduced to rational basis, one judge expressed to Tomsic, “I don’t see how you can win.”

Tomsic disagreed with the judge, pointing out that Judge Shelby ruled on a rational basis standard because “he did not need to go to heightened scrutiny because the law failed under rational basis review.”

Judge Kelly, considered to be the most conservative on the panel, argued with Tomsic about the presence of animus in the law.  He argued that animus was not present and that this law was an expression of Utah’s public policy.  Judge Lucero interrupted then and asked Tomsic if public policy trumps constitutional rights.  Tomsic, of course, answered no.

Tomsic’s secondary argument was that the state could define no nexus, or correlation, between a ban on same-sex marriage and the benefits associated with stable man-woman families.  Tomsic argued that even if the state had a vested interest in promoting stable man-woman family structures, there is nothing in this law that does so.

It is apparent that the two primary factors in deciding this case will be first, what level of judicial review is to be applied?  The answer to this question will likely set the tone for the flood of appeals currently working their way through the courts at this time.  The second question at hand will be to clarify the precedent set in the Windsor ruling that overturned parts of the federal Defense of Marriage Act.

Most observers of the proceedings seem to agree that the judges’ decisions had already been reached prior to the hearing, and that Judges Lucero and Holmes will likely rule to affirm Judge Shelby’s decision with Judge Kelly ruling against the plaintiffs in dissent.  One observer noted that neither party was overwhelming in their oral arguments, but that the state’s attorney made more mistakes than did the plaintiffs’.

It seems almost anti-climactic, in a way, to see the thousands of hours of work by the attorneys and the fundraising and community events by the plaintiffs and Restore Our Humanity all culminate in an hour of oral arguments before a panel of judges and then just walk away from the courthouse with no idea when a ruling will be issued.

Anti-climactic or not, however, history was made in Denver last week.

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