Today a panel of three judges from the 10th Circuit heard arguments in the Oklahoma marriage case. The trial judge had ruled (1) that he didn’t have jurisdiction to decide whether Oklahoma’s ban on recognizing same-sex marriages contracted in other states was constitutional, because the only defendant in the case, a county clerk, had no role in the recognition of out-of-state marriages, and (2) that the state’s constitutional amendment banning same-sex couples marrying in the state was unconstitutional. Both sides appealed. The clerk appealed the ruling against her on the marriage ban, and the plaintiffs appealed the jurisdictional ruling on the recognition ban.
As a result of this procedural posture, the attorney for the plaintiffs, Don Holladay, got dragged into questioning on the jurisdictional issue, and then on the question whether same-sex couples would be able to marry if the court struck down the constitutional amendment, in light of Holladay’s decision in framing his complaint not to attack the constitutional of Oklahoma’s statutory ban on same-sex marriage. Holladay never really got to argue on the merits of anything. His argument on the jurisdictional issue seemed to boil down to a law-of-the-case issue. When this case was previously before the 10th Circuit, a different panel said that the plaintiffs had sued the wrong defendants — the governor and attorney general, whose jobs did not involve administering the marriage laws — and that the correct defendant to sue was the county clerk who had denied marriage licenses to same-sex couples. Thus, this could be said to be the “law of the case,” and the current panel should stick to it and find that the district court had jurisdiction to decide the recognition issue. But, Holladay argued, that’s almost just academic, because if the court strikes down the ban on same-sex marriage, the ban on recognition should collapse as well. He used a front door-back door analogy, arguing that if same-sex couples can marry, it would not make sense for the state to be able to turn around and say those who married out of state would be deemed not to have valid marriages within the state. He also argued that when Oklahoma adopted the marriage amendment, it basically replaced the statutes with the amendment, so if the amendment falls, the statutes are gone, too. He said he had cited Oklahoma cases in his brief on that point.
The defense of the ban fell to James Campbell, an attorney for Alliance Defending Freedom, a “public interest” law firm dedicated to opposing same-sex marriage, which stepped in to represent the clerk on appeal. Campbell started off arguing that this is not a sex discrimination case so there should be no heightened scrutiny. He argued that Baker v. Nelson still binds the court, an argument that has been rejected by every district court judge who has decided a marriage equality case since last June’s Supreme Court decision in Windsor. Basically, it was a repeat of arguments made by Utah’s attorney in last week’s argument. A judge pointed out that the Supreme Court seems to have ignored Baker v. Nelson in its Windsor decision, but Campbell replied that Windsor presented a completely different issue, and respected the right of states to decide who could marry. He also distinguished Loving v. Virginia as being a race discrimination case, but Judge Lucero (the Democratic appointee on the panel) pointed out that the Supreme Court in Loving rejected the same kind of argument that Campbell was making on sex discrimination – the equal treatment argument. In Loving, the state of Virginia argued there was no discrimination because blacks and whites were equally prohibited from marrying each other; here, Oklahoma is equally prohibiting men and women from entering into same-sex marriages. The Court rejected the argument in Loving on the ground that the miscegenation ban was adopted to enforce white supremacy. I would say that the marriage ban is enacted to enforce heterosexual supremacy, which means this is a sexual orientation discrimination case. That leads us back to rational basis review, however, under 10th Circuit precedents.
As to that, the general attitude of the judges last week was that the state is in a strong position if it is a rational basis case. This is a bit odd, since many of the district judges in the unbroken string of marriage equality decisions have found that the state lacked a rational basis for maintaining a ban on same-sex marriages. Campbell pushed aggressively further, however. Generally, in a rational basis case the burden falls on the challengers to show that the state lacks a rational basis for the statute. In a heightened scrutiny case, the burden shifts to the state to justify its discriminatory statute by showing that it substantially advances an important state interest. Campbell claims that even in a heightened scrutiny case, the burden remains on the plaintiffs to prove that striking the challenged law would not produce harm in the long run, and he argued that there is no definite proof that changing the definition of marriage would not be harmful in the long run. I think he is off the rails there. One can embrace hypothetical justifications in a rational basis case, as that concept has been developed by the Supreme Court, but not in a heightened scrutiny case. The state cannot exclude an entire class of people from participating in a central social and legal institution based on an unproven hypothesis that there might be long-term ill effects from allowing them to participate. Especially when expert opinion on the main justification posited for the exclusion is firmly arrayed in favor of the view that there would be no harm.
At any rate, the oral argument did not cast much new light on the inclinations of the judges. The impression remains that Judge Lucero is likely to vote to uphold the trial court’s ruling, that Judge Kelly, who again didn’t say much, is likely to vote to reverse, and that the balance falls to Judge Holmes. It was also unclear from the questioning whether one or more of the judges thinks there are jurisdictional issues in the case that would require reversing, because many of the questions seemed odd until one recalled that there was a cross-appeal raising jurisdictional questions. As it is, the cross-appeal effectively deprived Holladay of the opportunity to argue against Campbell’s substantive points, and the court even extended Campbell’s rebuttal time, giving him substantially more time than Holladay to argue on the merits.
The court can take as long as it likes to reach a decision in the Utah and Oklahoma cases, but if it dawdles it is likely to be superseded by opinions from other circuits. The 4th Circuit hears oral argument in the Virginia cases on May 13, and arguments will probably occur in June on the 6th Circuit cases from Michigan, Ohio, Tennessee and Kentucky. In an interesting 6th Circuit development, Roberta Kaplan, who argued for Edith Windsor in U.S. v. Windsor, is again trying to intervene. She was rebuffed by the 10th Circuit when she tried to intervene on behalf of a new set of Utah plaintiffs, but now she is attempting to intervene in the 6th Circuit on behalf of Equality Ohio, the state’s gay rights organization, contending, contrary to the plaintiffs in the Michigan and Ohio cases, that the court should go directly to en banc review as urged by Michigan Attorney General Bill Schuette. Kaplan argues that a three-judge panel would be constrained on the level of judicial review by past 6th Circuit panel decisions, but an en banc panel would not be so bound and could consider the level of scrutiny issue de novo, which would expedite consideration of the case on the circuit court level. Since everybody understands that at least one marriage case is going to the Supreme Court, it would also be more likely to get there first from the circuit that has en banc consideration first. Since the 9th Circuit is hanging back for now, and the 10th might get tied up in jurisdictional knots, to judge by the oral arguments last week and this, the 6th Circuit might be on the one to go up — unless the 4th Circuit beats them to the punch. The 4th Circuit has already scheduled argument before a three-judge panel and nobody is asking to go directly to en banc there. It’s getting difficult to keep up with all these developments! Somebody will be first to the Supreme Court, but it’s too early to tell who.