OK, the marriage cases are beginning to reach the appeals courts. In the most important case since the Supreme Court decided United States v. Windsor last summer, the US Court of Appeals for the 10th Circuit was the scene yesterday for a hearing of Kitchens v. Herbert. This case was tried in Utah and resulted in federal district judge Richard Shelby declaring that the Utah marriage bans violated both the equal protection and the due process guarantees of the Constitution. Look up Richard Shelby on Kitchens v. Herbert. The state of Utah appealed that judgment to the Court of Appeals for the 10th Circuit, and that is where we were yesterday. Now we wait for the decision.
If the 10th Circuit agrees with Judge Shelby, then it appears that all marriage bans in the entire 10th Circuit will be struck down—that is, in Utah, Wyoming, Colorado, Kansas, New Mexico, and the northern, eastern, and western districts of Oklahoma. But there is more to this than that. Ari Ezra Waldman writes about the importance of this case:Ari says this has a good chance of being the case that makes it all the way to the Supreme Court. So Ari says the questions are: Will the court issue as broad a ruling as Judge Shelby’s, or limit it in some way? What does the court say about the level of scrutiny in antigay discrimination cases? and What role will the political backgrounds of the judges play in their decision-making (two Republicans and one Democrat)?
Lisa Keen writes on background, and, in the aftermath, the Washington Post, and the Denver Post. See Andy Towle here, and more Andy Towle and a full audio recording here.
It’s worth spending the time listening to the full audio in the last link. As soon as a full transcript is available, I’ll tell you where it can be found. What is happening now, as we move through these cases around the country, is akin to periods during the Civil Rights movement when the issues were fought out one at a time. Decades from now, when our grandchildren look back on this history, those of us here now will remember, “Ah, yeah. That was an intense time. After the Supreme Court ruled in Windsor but before people agreed as to what Windsor meant, and we had to fight it out state by state. I remember when our right to marry nationally first got to the appellate court—10, I think it was—and we had to wait for their decision…” What we’re hearing now in the media is a kind of play-by-play as we listen to the principals fight it out. (There’s no video in federal court cases.)As I read Ari, it appears that he is confident that the 10th Circuit, when it announces its decision, will agree with Judge Shelby—and with all the other federal judges who have, unanimously, agreed on the meaning of Windsor. I think, now, that it is late, at this point, to reverse the flow of this history.