The Denver-based Tenth Circuit Court of Appeals (pictured) is hearing arguments today in Kitchen v. Herbert, the federal case challenging Utah's ban on gays marrying. It is the first in a line of nearly 65 marriage lawsuits speeding their way through the federal and state judiciaries and, therefore, may be the one case to reach the Supreme Court and be the vehicle to determine whether we have a nationwide right to marry.
In December of last year, Judge Richard Shelby issued a broad ruling, holding that marriage discrimination violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was the first same-sex marriage ruling after the Supreme Court's decision in Windsor and Judge Shelby relied heavily on that pivotal case. In fact, he seems to have set the tone for how the lower federal courts are interpreting and using Windsor. Shelby himself found that Windsor required some level of scrutiny higher than simple rational basis; other courts have found that it demanded heightened review. All courts have essentially found that Windsor made marriage discrimination pretty much untenable.
It was, then, the second domino after Windsor.
There are a few things to watch for in this closed-door hearing.
1. Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?
2. What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?
3. Will the political backgrounds of the judges play a role in their decision making?
Let's turn to each of this questions briefly AFTER THE JUMP.
Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?
Judge Shelby's decision reminds us of Judge Vaughn Walker's decision in the Prop 8 case. After his detailed trial, Judge Walker found that banning gays from marrying violates two clauses of the Constitution: the Equal Protection Clause and the Due Process Clause. The latter prevents the government from denying citizens rights that are so central to what it means to be free and independent persons; the former prevents the government from discriminating for no good reason other than hate. Marriage discrimination does indeed violate both: Marriage is a fundamental human right and the right to choose whom you want to marry is a fundamental right in a democracy; denying gays the right to marry simply because they want to marry persons of the same sex is odious, insidious, and wrong.
Judge Shelby's decision tracked both lines of reasoning, but that does not necessarily mean a Tenth Circuit decision must, as well. As we have seen elsewhere (Oklahoma and Michigan are the most recent examples), judges can come to the same ultimate result on a more narrow basis. Judges do that not because they disagree with Judge Walker's and Judge Shelby's reasoning, but more likely because the canon of judicial decision-making is to decide the case in front of you as narrowly as possible. If the same result can be had through one clause of the Constitution, many judges see no need to go on to another clause.
Some may argue that a broad ruling may have expressive value. Granted, a strong statement that bans on gay marriage violate not one, but two parts of the Federal Constitution is indeed powerful. But if the Tenth Circuit affirms Judge Shelby's ruling and agrees with his reasoning on either Clause, it will be the first federal appellate court to do so in that way. Remember, the Ninth Circuit's ruling in the Prop 8 case was exceedingly narrow, focused on the fact that California first granted and then denied marriage rights. Therefore, a cleaner, widely applicable ruling in the Kitchen case would be its own powerful clarion call.
What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?
Judge Shelby found that Windsor required some level of scrutiny above the lowest traditional form. A panel in the Ninth Circuit found that Windsor actually demanded heightened scrutiny. Other judges have declined to enter to fray, deciding they did not need heightened scrutiny to end marriage discrimination.
Windsor, of course, made no specific statement about scrutiny. I recently spoke on a panel about Windsor in which I suggested that Justice Kennedy's seemingly maddening refusal to be explicit about his level of scrutiny is actually part of a long pattern of his civil rights cases that tries to erode the rigidity of the level of scrutiny scheme in favor of a more flexible test. Others disagreed.
Needless to say, there are lots of different views running through the federal and state courts about scrutiny. I do not expect the Tenth Circuit to enter the debate. If the court affirms the ruling, it will likely do so without bothering to make an explicit decision on scrutiny; after all, it doesn't have to.
Will the political backgrounds of the judges play a role in their decisionmaking?
The Tenth Circuit panel consists of one Democratic appointee and two Republican appointees. The Ninth Circuit panel that decided the Prop 8 appeal was the reverse, and including one of the counrty's most liberal judges. But this doesn't mean much. The appellate courts that heard arguments in the various Windsor cases were mixed panels, some of which had majority Republican appointees. First, it is bound to happen: Republicans controlled the White House for all but eight years between 1981 and 2009. Demographic changes in this country may make it harder for them to win it back, but many of the federal judges they appointed are still around. Second, many of the judges to declare marriage discrimination unconstitutional have been Republican appointees. They are both honestly interpreting the law and reflecting the growing belief that preventing gays from marrying is just irrational.
Note: The 10th Circuit puts an audio recording of the hearing on its website within hours after adjournment.
Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.