After the arguments in the Utah gay marriage case had ended, the state’s recently appointed attorney general Sean Reyes approached the six plaintiffs in the case to offer sympathy for what they have gone through. “It’s not personal,” Reyes told the three couples, according to the account by Los Angeles Times reporter Jenny Deam.
Reyes, a Republican and the first Latino to hold statewide office in Utah, elaborated when reporters caught up with him. “I wish them the best,” said Reyes, son of an immigrant Filipino father. “Their families are as important to them as mine is to me." Reyes continued to strike a conciliatory tone the next day at a rally of gay marriage opponents, urging the crowd to be “respectful” and “empathetic” toward those on the other side.
For her part, the lawyer for the plaintiffs also took a conciliatory stance during the hour-long arguments in the case before three judges from the Tenth U.S. Circuit Court of Appeals [April 10]. When Salt Lake City attorney Peggy Tomsic said the state’s voter-enacted ban on same-sex marriage reflected “animus,” Judge Paul Kelly asked whether she was accusing the people of Utah of being “mean-spirited or bigoted.” Tomsic quickly demurred. Animus, she explained, was merely “a constitutional term of art” used to describe exclusionary laws that had no rational basis.
Reporters who covered the arguments were naturally tentative in their stories about the likely outcome of the case, but anyone who listens to the audio posted on the court’s web site can hear the outlines of a decision to strike down the Utah measure. Alone among the three judges, Kelly, a Republican appointed to the bench in 1991 by President George H.W. Bush, appeared to defend what the state’s lawyer defined as Utah’s “traditional child-centric vision” of marriage.
The other two judges had sharp questions for the state’s lawyer: Gene Schaerr, a high-profile appellate lawyer who resigned from a Washington, D.C., firm to return to his native state to defend the gay marriage ban. Schaerr opened by arguing that the Supreme Court had upheld states’ authority over marriage in its decision in June, United States v. Windsor, to strike down the federal Defense of Marriage Act (DOMA), Judge Carlos Lucero, a Democrat appointed by President Bill Clinton in 1995, pointedly disagreed. The “dispositive language” in Justice Anthony M. Kennedy’s opinion in the case was not about federalism, Lucero said, but about equal protection.
Judge Jerome Holmes, a conservative African American appointed by President George W. Bush in 2006, asked pointed questions of both lawyers. But he seemed to presage a vote for the plaintiffs by citing the Supreme Court’s decision in 1967 to strike down laws banning interracial marriage. That law “made that mixed-race couple essentially an ‘other’ for the purposes of marriage,” Holmes told Schaerr. “Why is that any different from this situation?”
Even before the arguments, gay marriage supporters were optimistic about winning Holmes’s vote. He was one of the two Tenth Circuit judges who back in December declined to block gay marriages in Utah while the lower court ruling invalidating the ban was on appeal.
Schaerr’s decision to pitch the state’s defense on the interests of children led the judges into questions about the social science research on how kids fare in same-sex households. In reply, Schaerr made a telling concession that children of same-sex couples “would likely be better off if their guardians or parents were allowed to be married.” When he continued by saying the same would be true for children of polygamous marriages, Lucero abruptly cut him off. “Let’s talk about gay marriage,” Lucero said.
The arguments in the Utah case and arguments before the same panel in a case from Oklahoma later this week [April 17] mark the first times marriage equality has reached a federal appeals court since the Supreme Court’s decision in Windsor. Since the Supreme Court ruling, gay marriage advocates have won an unbroken string of victories in 11 states from state and federal courts.
Judges from diverse backgrounds and representing different generations have uniformly interpreted Windsor to undermine the state laws still on the book excluding same-sex couples from marrying. Besides Utah and Oklahoma, state bans have also been struck down by federal judges in Virginia, Texas, and Michigan. The judge in the Virginia case, Arenda Wright Allen, is an African American appointed by President Obama in 2011; the judge in the Michigan case, Bernard Friedman, was appointed by President Ronald Reagan in 1988. In his ruling, Friedman significantly rejected the social science research cited by opponents of same-sex marriage as “unreliable.”
After Friedman’s ruling, the Detroit Free Press columnist Brian Dickerson recalled that the judge had hired a lesbian law clerk back in 1995 and had taken a grandfatherly interest in her family through her two pregnancies. As the anecdote shows, the court cases now headed toward the Supreme Court may ultimately turn on questions of law, but despite what Reyes told the Utah plaintiffs the cases are also unmistakably personal for the couples involved.
Gay marriage advocates have turned public opinion around by showing Americans the true picture of gay and lesbian families. With those stories before them, judges have been turned around as well, recognizing a right unrecognized as recently as 10 years ago. The only question remaining is what the Supreme Court will do when the first cases arrive there, probably later this year.