DENVER (AP) – In the past month, two of the nation’s most entrenched conservative states – Utah and Oklahoma – reluctantly found themselves at the forefront of the gay-marriage debate after federal judges declared their laws banning gay marriage unconstitutional.
Now, both of those cases are headed to the Denver-based U.S. 10th Circuit Court of Appeals, one of the most politically divided appeals courts in the nation and a panel that finds itself in the national spotlight.
The court has five judges appointed by Democratic presidents and five by Republicans. A central figure on the court personifies that ideological split: Judge Scott Matheson Jr., a former federal prosecutor and the Mormon son of a former Utah governor. He was appointed by President Barack Obama.
“Who knows how the 10th Circuit Court will review this issue,” said Justin Pidot, a professor at the University of Denver’s Sturm College of Law.
Because circuit justices are randomly selected to handle appeals cases, the court has issued widely divergent rulings on very similar types of cases, such as two police brutality cases, said Alan Chen, a professor of constitutional law at the Sturm College of Law.
“I think unpredictable is one way to say it,” Chen said. “It wouldn’t be my first choice of circuits.”
The court could use three-judge panels to review the Oklahoma and Utah cases, but the full 10-member court also could decide to hear them, he said.
At least one other high-profile national issue is under review by the 10th Circuit. The Denver-based Little Sisters of the Poor, founded by Catholic nuns, has a pending lawsuit against the federal government in opposition to the Affordable Health Care Act’s contraceptive mandate. It is one of many similar cases filed across the country.
So far, however, the only cases in which a federal judge has struck down a state’s gay-marriage law are in the 10th Circuit.
U.S. District Judge Robert Shelby ruled Dec. 2 that Utah’s 2004 ban on same-sex marriage violated gay and lesbian couples’ constitutional rights. U.S. District Judge Terence Kern struck down Oklahoma’s gay-marriage ban Tuesday. Colorado’s Constitution has a similar ban.
The ultimate goal of litigants often is to see an issue rise to the U.S. Supreme Court. Filing multiple cases on the same issue enhances the chance the high court will review an issue like gay marriage.
Legal experts said politics is likely at the root of decisions to file gay-marriage lawsuits in two arch-conservative states, but plaintiffs may be motivated by an unusual strategy.
National advocacy groups sometimes target certain federal circuits with track records favorable to their positions in a process called “forum shopping,” Pidot said. Groups funding lawsuits for liberal causes are more likely to file in the 9th Circuit Court of Appeals based in San Francisco, while conservative groups are more inclined to take their business to the more conservative 5th Circuit Court of Appeals encompassing Texas, Mississippi and Louisiana, he said.
The cases brought in Utah and Oklahoma appeared to be driven more by the passions of popular opinion rather then the political bent of judges, Pidot said. It means the outcome is less predictable.
“Having a split circuit (court) significantly changes the picture,” he said of the 10th Circuit. “It’s a high-stakes game.”
