Appeals Courts to hear Utah, Oklahoma and Virginia cases while new cases continue to be filed

DAVID TAFFET | Staff Writer

The U.S. Supreme Court won’t hear a marriage case this session, but many cases are moving through the system, and new cases are quickly filling court dockets.

This week, the 10th Circuit Court of Appeals announced the three-judge panel that will hear the Utah marriage appeal on April 10. The same panel is likely to hear Oklahoma’s appeal April 17.

Judge Robert Shelby declared Utah’s marriage law unconstitutional in December. He refused to put a stay on his decision. Tenth Circuit Judge Jerome Holmes also refused to stay the decision, allowing more than 1,000 same-sex couples to marry until the U.S. Supreme Court halted marriage during the appeals process.

Holmes, a George W. Bush appointee, is one of the three judges appointed to the panel that will hear the case. Bill Clinton appointee Carlos Lucero also is on the panel along with George H.W. Bush appointee Paul Kelly.

Lucero has had gay clerks and is described as liberal on social issues, according to Think Progress. Kelly, however, is among the court’s most conservative judges and voted on the side of Hobby Lobby, in a case recently heard by the Supreme Court. In that case, the retailer doesn’t want to pay for employee health insurance that covers contraception.

The same panel also is expected to hear the Oklahoma case. That state’s marriage law was overturned in January in a case that had been dragging through the court for 10 years.

Utah is expected to argue the “institution of marriage would suffer” if same-sex couples marry.  To counter that argument, Massachusetts Attorney General Martha Coakley and Washington Attorney General Bob Ferguson wrote an editorial entitled “Equality made marriage stronger in our states,” in the Salt Lake Tribune last week.

“The existing data simply does not support the position that same sex marriage erodes the institution of marriage,” Coakley and Ferguson wrote.

They quote Centers for Disease Control statistics from 2011, showing that six of the seven states with marriage equality at that time had divorce rates below the national average, including four of the 10 lowest divorce rates in the country. States without marriage equality had the highest divorce rates.

But the attorneys general believe just quoting statistics is a simplistic approach.

“Statistics aside, we believe marriage equality has re-invigorated the institution by highlighting the core values of love and commitment that form the foundation of all marriages,” they wrote. “What has held strong is the power of the institution itself — even in the face of change.”

The same day that the 10th Circuit takes up the Oklahoma case, a U.S. District Judge in Arkansas will hear a challenge to that state’s marriage law.

The 4th Circuit will hear the appeal of the Virginia decision on May 13 that overturned the state’s marriage law. Ted Olson and David Boies, the attorneys on the winning side of the Proposition 8 case that reinstated marriage equality in California, will argue the case against the current marriage ban.

Oral arguments for the Kentucky marriage case have not been set yet, but the first filings are due in the 6th Circuit on May 7.

The conservative 5th Circuit that will hear the Texas marriage case has not shown the same interest in pushing the case forward as rapidly as the Utah, Oklahoma and Virginia cases. Texas’ marriage amendment was found unconstitutional by a federal court in San Antonio in February.

On April 4, the U.S. Supreme Court will announce if it will hear a New Mexico case in which a photography business refused to photograph a gay couple’s wedding. The court has considered taking the case on two previous dates but has not made a decision.

Oregon United for Marriage announced this week it will withdraw its petition drive to get marriage equality on the November ballot if a federal judge rules by May 23 that the state ban is unconstitutional. The attorney general has already announced she would not appeal that favorable ruling. The organization has collected more than enough signatures to get the issue on the ballot.

Nike, Intel and Starbucks along with 33 other Oregon businesses filed an amicus brief in the pending case on the side of marriage equality. Oregon is the only west coast state without marriage equality.

The Nevada case challenging the state’s marriage ban was scheduled for an April 9 hearing but has been delayed by the 9th Circuit. That court found in favor of marriage equality in California. Nevada currently offers domestic partnerships and has pending legislation to repeal its marriage amendment.

In Florida, a gay Key West couple filed a lawsuit this week after the Monroe County Clerk refused to issue them a marriage license.

The latest count of cases is 60 pending in 30 states, according to the group Freedom to Marry which tracks marriage litigation.

This article appeared in the Dallas Voice print edition April 4, 2014.