- Associated Press - Thursday, April 17, 2014

Thursday’s hearing in Denver was the second of two hearings on gay marriage that were weighted with legal significance. The cases are the first time an appellate court has considered the ramifications of last year’s U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act. The hearing on the legality of Oklahoma’s gay marriage ban came one week after a three-judge panel heard a similar case originating from Utah.

Gay rights activists have won eight lower court cases since the Supreme Court ruling, and expectations are high that the nation’s highest court eventually will rule that gays can marry in every state. But a lot can happen before then.


The three-judge panel of the 10th U.S. Circuit Court of Appeals heard arguments in Utah’s appeal of a judge’s ruling striking down its gay marriage ban. The judges seemed evenly split: one against the ban, one willing to uphold it and a third who asked sharp questions of both sides. The same judges Thursday heard Oklahoma’s appeal of a similar ruling that invalidated its gay marriage ban. The judges likely will issue separate rulings, but they could come on the same day. The cases are similar in that both bans were passed by voters in 2004, and they were struck down by federal judges within a month of each other this winter. The legal arguments for and against also are alike.


The Supreme Court last year found that the 1996 Defense of Marriage Act that forbade the federal government from recognizing same-sex marriage improperly deprived gay couples of due process. That ruling came as polls showed a majority of Americans now support gay marriage. Lower-court judges have repeatedly cited the Supreme Court decision when striking down same-sex marriage bans. So far they have ruled against bans in Michigan, Oklahoma, Utah, Virginia and Texas, and ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states. Gay marriage is legal in 17 states and the District of Columbia.


Legal experts say the Supreme Court eventually will take a gay marriage case after one or more appeals court rulings, but that won’t happen until 2015 at the earliest. And the high court is under no obligation to take up the issue. The three-judge 10th Circuit panel is only the first of five circuits hearing appeals of all those lower-court gay marriage rulings. It is not expected to issue its ruling for several months. In any of the appellate cases, the losing party can appeal directly to the Supreme Court, or first ask for the entire appellate court to review the ruling in what is called an en banc hearing. It’s unclear which case would reach the high court first.


Unlikely. The 10th Circuit’s ruling will become law in the six states it covers - Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. But it is likely that a ruling striking down Utah’s gay marriage ban - the law at issue in the case - will be put on hold until the Supreme Court weighs in. The top court already stayed December’s trial court ruling that briefly legalized same-sex weddings in Utah. If the plaintiffs win in Denver, Utah appeals directly to the high court, and the Supreme Court declines to act, then gay marriage would be effectively legalized in the 10th Circuit’s states. Same-sex couples wanting to marry in other 10th Circuit states likely would have to first get a judge to formally strike down their state’s ban. The New Mexico Supreme Court already has legalized same-sex weddings there.


Many legal observers say they expect so but also acknowledge it’s impossible to predict what the high court will do. The Supreme Court also could just wait and see how the nation’s appellate courts rule. It often waits until there is a conflict between appellate courts before taking a case.

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