Attorneys David Boies, left, and Theodore B. Olson discuss the issue of gay marriage at the Civil Rights Summit at the LBJ Presidential Library, Tuesday, April 8, 2014 in Austin, Texas. (Photo: AP / Austin American-Statesman, Jay Janner, pool)
Two federal appellate courts are poised to decide the constitutionality of three state bans against same-sex marriage and move the fundamental question closer to the U.S. Supreme Court.
With surprising speed, federal district judges in four months have struck down same-sex marriage prohibitions in six states and another state’s ban on recognition of out-of-state gay marriages. Now it is their appellate-level counterparts’ turn to decide whether a state, consistent with the U.S. constitution, may define marriage as only the union of a man and a woman.
“Federal judges in every area of the country, of all political affiliations — and every one has ruled the same way,” said David Boies of Boies, Schiller & Flexner, co-counsel in the Virginia marriage ­challenge, during an April 9 celebration in Austin of the 50th anniversary of the Civil Rights Act of 1964.
First in line is the U.S. Court of Appeals for the Tenth Circuit. A three-judge panel heard arguments on April 10 in Kitchen v. Herbert, in which lawyers for Utah seek to revive a voter-approved amendment to its state constitution. The panel didn’t clearly signal which way it was leaning. That same panel on April 17 will hear Bishop v. Smith, in which Oklahoma seeks to reinstate its own constitution’s marriage ban. And on May 13, two Virginia cases go before a panel of the Fourth Circuit: Bostic v. Schaefer and the class action Harris v. Rainey.
Despite their success in the district courts, same-sex couples with a few exceptions have not been able to marry in those states, said Paul Smith of Jenner & Block, co-counsel with the American Civil Liberties Union in the Harris case. “Nobody is getting any relief because everything is stayed [because of the appeals],” he said. “There will be a lot of pressure to get this resolved.”
In fact, the state of Michigan last week asked the Sixth Circuit, which has pending appeals by that state and Kentucky, Ohio and Tennessee, to skip arguments before a three-judge panel and, instead, have all 15 judges hear its appeal in DeBoer v. Snyder.
Michigan argues that an en banc ruling would save time and prevent the ­confusion from potentially conflicting panel decisions. Of course, it also would position the losing party immediately for the next and final destination: the Supreme Court.
Besides those appeals, the Fifth and Ninth circuits also have pending cases from Texas and Nevada, respectively. “There’s no question this will end up in the Supreme Court pretty quickly,” Smith said.
More than four dozen amicus briefs were submitted in Kitchen. Major law firms from New York to San Francisco, including Bingham McCutchen, Cleary Gottlieb Steen & Hamilton, Jenner & Block and Latham & Watkins, filed briefs supporting same-sex marriage on behalf of civil rights, health, religious and other organizations. Oppon­ents, including states defending their own gay marriage bans, the U.S. Conference of Catholic Bishops, the Family Research Council and the Becket Fund for Religious Liberty, largely turned to Utah-based law firms.
During last week’s arguments, Utah special assistant attorney general Gene Schaerr, a veteran Supreme Court advocate, faced Peggy Tomsic of Salt Lake City’s Magleby & Greenwood. On April 17, Oklahoma’s defense of its ban will be made by James Campbell of Alliance Defending Freedom. Represent­ing the gay couple will be Don Holladay of Holladay & Chilton in Oklahoma City.
“At the core of almost all of these cases are two claims,” said Austin Nimock of Alliance Defending Freedom. One is that the 14th Amendment’s equal-protection and due-process guarantees prohibit states from denying same-sex couples the fundamental right to marry, he said. Second, in some but not all of the cases, is that under the U.S. Constitution’s full-faith-and-credit clause, states must give legal effect to gay marriages performed outside of their boundaries.
Nimock will be one of an estimated five lawyers arguing on May 13 in the Virginia appeal. He represents Prince William County Clerk of Court Michèle McQuigg. Theodore Olson of Gibson, Dunn & Crutcher will argue for the two Virginia gay couples. Virginia Solicitor General Stuart Raphael and James Esseks of the American Civil Liberties Union also are expected to argue on Olson’s side.
The Supreme Court’s June 2013 decision in United States v. Windsor, striking down the definition of marriage under the Defense of Marriage Act, “has given lot of encouragement to the side of marriage equality,” said Jenner’s Smith. Still, “the one thing Windsor does not do is clearly establish a nationalized definition of marriage,” said Nimock, defending the state’s ban. “It’s like ‘Sherlock Holmes and the Curious Incident of the Dog in the Night-Time’ — the curious thing was the dog didn’t bark.”
Contact Marcia Coyle at firstname.lastname@example.org.