Marriage equality court cases in uncharted territory

Is a Supreme Court ruling on the horizon?

A surge of lawsuits challenging bans on same-sex marriage throughout the nation could force the U.S. Supreme Court to rule on the issue sooner than later, but only if there are conflicting decisions in the lower courts, one expert said.

There are 33 states that ban same-sex marriage, with lawsuits challenging the legality of those bans in most of those of them — including Colorado, Virginia, Michigan, Florida, Arizona, Pennsylvania, Ohio, Oklahoma, and Utah.

Last December, U.S. District Judge Robert Shelby stuck down Utah’s same-sex marriage ban. The ruling was appealed by Utah, and the case heads to the 10th Circuit Court of Appeals in Denver.

It was the first time a federal court overturned a state marriage ban since the US Supreme Court, last June, struck down a part of the Defense of Marriage Act (DOMA) that banned federal benefits from same-sex couples.

Whether the 10th Circuit decides to uphold Shelby’s ruling or not, the losing side will ask the US Supreme Court to review the case.

“I think this is the one the Supreme Court is going to take,” said Nancy Leong, Assistant Professor at the University of Denver’s Sturm College of Law. “The court kind of dodged the overall issue of the legality of same-sex marriage in situations where the state has the (same-sex marriage) ban.”

Last June, the Supreme Court decided not to review the Proposition 8 case, referring it instead back to the lower 9th Circuit Court’s decision to overturn the statute, allowing same-sex marriages in California. Dismissing the appeal allowed the lower court ruling to stand and made same-sex marriage legal in California, though the Court had technically not taken a position on the right for lesbian and gay couples to marry.

“The court can only do that so many times,” said Leong, “particularly because there are two district courts (Utah and Oklahoma) within the 10th Circuit that have reached these decisions.”

17 states plus the District of Columbia allow same-sex marriage, with six of those states authorizing same-sex marriage through the courts — the latest in New Mexico in Dec. of 2013.

But one legal expert cautions that the trend of lower courts ruling in favor of same-sex marriage may actually keep the US Supreme Court from granting a review of the Shelby case.

“The 10th Circuit case presents a significant federal question,” said Ralph Ogden, a Colorado lawyer who is representing an Adams County couple suing to overturn Colorado’s same-sex marriage ban. “But frequently the Supreme Court will wait until there are conflicting opinions before it grants cert (review of the case).”

Ogden said the Shelby case will be the initial 10th Circuit opinion on the constitutionality of same-sex marriage bans. “It’s conceivable that they [the Supreme Court] will say we’re not going to grant a review. Let’s wait and see how the other circuit courts deal with the issue.”

“That’s not a prediction,” Ogden added. “It’s just one possibility, and that’s how they have reacted in the past.”

Utah uses novel ‘diversity’ argument to support same-sex marriage ban

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On Feb. 3, Utah filed arguments with the 10th Circuit Court of Appeals defending the state’s same-sex marriage ban, citing that children should have the gender diversity of both male and female parents. Oral arguments are scheduled at the Denver-based 10th Circuit for April 10.

The brief was filed as part of an appeal to U.S. District Judge Robert Shelby’s ruling which struck down Utah’s constitutional amendment defining marriage between one man and one woman.

“Basically this is an argument that’s taken from cases involving affirmative action in higher education,” said Nancy Leong, Assistant Professor at the University of Denver’s Sturm College of Law. “What the state of Utah is trying to do here is to say that because diversity is something that we value in higher education, why wouldn’t we also value gender diversity within a parenting arrangement?”

Leong said that in her experience studying and teaching constitutional and civil rights law, it’s the first time she has ever seen this type of argument used to defend a same-sex marriage ban.

“I’m surprised to see the state of Utah trying it,” she said.

Leong said the most striking part of that claim is its speculative assumptions about masculinity and femininity.

“In other words, there are things that men provide that women can’t provide, and things women provide that men can’t provide,” Leong explained. “It’s an unexamined acceptance of gender stereotypes.”

The argument also draws false parallels between establishing a diverse student body at a university and a parenting arrangement, said Leong. “There’s this very obvious difference in terms of the magnitude of people to which you are applying the diversity argument to.”

Utah’s brief reasserts the idea that gender diversity — having one mother and one father— fosters the optimal household for a child to learn and grow.

“Both the biological connection and the gender diversity inherent in the married, mother-father parenting model powerfully enhance child welfare,” the brief explains, “…the diversity of having both a mom and a dad is the ideal parenting environment.”

The American Academy of Pediatrics announced last year that it was in the best interest of children to allow same-sex couples who are raising a family to have access to the protections married provides.

In addition, the American Academy of Child and Adolescent Psychiatry, The American Psychiatric Association, The American Psychological Association, the Child Welfare League of America, and the National Adoption Center have all publically stated that sexual orientation has nothing to do with a person’s ability to raise a child.

Shannon Minter, Legal Director at the National Center for Lesbian Rights and co-counsel for the Utah plaintiffs who filed the original lawsuit, told <Out Front> he finds the terminology regarding gender diversity misleading.

“It’s an attempt to portray what is blatant gender discrimination as something positive,” said Minter, “but it’s basically just a defense for discriminating based on gender and only allowing opposite-sex couples and not same-sex couples to marry — saying that’s a good thing because it promotes so-called diversity in marriage.”

Minter added that the argument only reinstates the very inequity that is being challenged regarding Utah’s same-sex marriage ban.

“We are to the point now where people who are defending these marriage bans are unable to identify any legitimate or principled reason to keep same-sex couples and their families out of marriage,” said Minter.

The plaintiffs represented by Minter must file a reply to Utah’s brief by Feb. 25.