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.