5 Thoughts on the Kitchen v. Herbert Argument

Gene Schaerr, attorney who argued on behalf of the State of Utah in Kitchen v. Herbert.

For those who somehow didn’t hear, yesterday was the oral argument in the Kitchen v. Herbert appeal at the Tenth Circuit Court of Appeals in Denver.

Since there are few things I enjoy doing more than listening to a well-argued appeal, I listened to the arguments online yesterday afternoon and have a few thoughts that I thought I would throw out there for anyone who’s interested.  If you’re inclined to listen to the argument yourself, you can find an MP3 here.

(1) The State of Utah and the Plaintiffs are both well-represented.  I think the State of Utah had the worse of the argument yesterday.  Most people will probably agree.  And some will use it to conclude that the state has a “loser” of a “frivolous” case, and overspent money on an “inept” religious-fanatic attorney.  They couldn’t be more wrong.  The state may very well lose this appeal (see below), but they are well-represented with Gene Schaerr and have credible arguments that have quite a bit of persuasive power, especially to those focused on the proper nature of the judicial role.

Peggy Tomsic, who argued on behalf of plaintiffs in Kitchen v. Herbert.
Peggy Tomsic, who argued on behalf of plaintiffs in Kitchen v. Herbert.

Peggy Tomsic argued the appeal for the Plaintiffs, and, while she was treated a bit more nicely by the panel (she was bailed out with softball questions on a couple of occasions) she also did a fine job.  Arguing at the 10th Circuit is a big deal, even for an attorney as accomplished as Tomsic!  She’s a member of our very own little Utah Bar and she tore it up.  I’m always glad to see that.

(2) The state’s social science data isn’t convincing to anyone, including the state.  The  state’s backpedaling on its reliance on some of the scientific studies cited in its briefs that began on Wednesday continued nearly unabated in oral argument on Thursday, with the state’s attorney acknowledging weaknesses in some studies and eventually settling on the idea that the science was inconclusive because gay marriage (and the scientific study of its effects) was relatively new.  Ironically, the most persuasive of the state’s arguments was a variation on a usually liberal argument–an argument for the benefits of gender diversity in parenting (indeed, the state cited the Grutter affirmative action case in support of the gender diversity interest).

(3) The state’s social science data may nonetheless be convincing enough to win.  At least at the Supreme Court, if cert is granted (see #4 below)…and depending on what the Court decides that its decision in United States v. Windsor means (see #5 below).  If true rational basis review is applied to Amendment 3, the state does not have to demonstrate much more than a possibility that Amendment 3 could have been based on a rational consideration.  The fact that there is uncertain science on societal impacts is probably enough, as is the nod toward encouraging gender diverse parenting.  One may get the idea that no man-woman marriage amendment can meet the rational basis standard from the fact that courts around the country are consistently striking down anti-gay marriage statutes rights now.  But you should be careful in drawing that conclusion, because it’s based on a certain conception of the Windsor case that’s awaiting further definition from the Supreme Court, and no one really knows what that case means (aside from the fact that it struck down DOMA).

us-supreme-court(4) The state is going to lose at the 10th Circuit, but the outcome at the Supreme Court is uncertain.  Although it’s axiomatic that one should be cautious is predicting the outcome of an appeal from oral argument, it was clear in this case that the panel is split 2-1, with two judges set to uphold Judge Shelby’s ruling declaring Amendment 3 unconstitutional (this was pretty much clear from the moment the 10th Circuit denied the state’s request for a stay of enforcement of Judge Shelby’s order).  But it’s much harder to predict how the Supreme Court would rule.  Right now, district court judges have been striking down anti-gay marriage constitutional amendments based on the Supreme Court’s decision in the Windsor case, which declared the federal Defense of Marriage Act unconstitutional.  But Windsor, even though it struck down DOMA, made a strong case for the rights of states to define marriage.  Furthermore, it made a weak case for heightened scrutiny of marriage classifications (outside of race, of course).  What Windsor did was make a strong case that DOMA (and, by extension, state man-woman marriage laws) was rooted in animus (i.e., dislike) toward gays and lesbians.  If the Supreme Court walks back the generality of that conclusion, all bets are off.

(5) The key question is:  What does Windsor mean?  Right now (despite those who speak with great certainty on the subject), nobody knows what Windsor means.  Heck, the Supreme Court doesn’t even know what Windsor means.  But we’re likely to find out exactly how far the Supreme Court is willing to take  Windsor if the Court grants certiorari in Kitchen.  At least two key questions are going to need to be answered: (i) will classifications based on sexual orientation be subjected to heightened scrutiny under an equal protection analysis; and (ii) will the court assume that every man-woman marriage law was passed with animus towards gays and lesbians?  If the answer to both those questions is “no,” the state wins.  If the answer to one or both is “yes,” the state loses.  It really is that simple, at least from where I’m looking right now…

If I had to guess, I would say that Judge Shelby’s decision striking down Amendment 3 is affirmed by the 10th Circuit and then re-affirmed by the Supreme Court on certiorari review.  I base my opinion less on the law (which I think is far more uncertain right now than the plaintiffs in Kitchen want to admit) and more on the seeming inevitability of gay marriage and the fact that I deem it unlikely that the Supreme Court would relish rolling back what has become more or less a consensus at the district court level.  When you could go either way on the law, and one way looks legacy preserving and the other…not so much, there’s a strong temptation to take the first route.  However, the Court could decide to take rational basis review very seriously, uphold Amendment 3, and simply force the state legislatures to confront the issue on their own — which I wouldn’t be surprised to see, either.

Regardless of which way it goes, it will interesting to watch.

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