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SALT LAKE CITY — Two weeks remain before Utah’s constitutional amendment defining marriage ends up before a panel of three judges at the 10th Circuit Court of Appeals in Denver.
The outcome of that hearing could have far-reaching implications, influencing whether the issue of same-sex marriage legality eventually is decided by the U.S. Supreme Court, which many believe it will.
“All sides deserve to have the process unfold to the point where we have some clarity from the United States Supreme Court,” Utah Attorney General Sean Reyes said this week. “Ultimately, I think that’s what it will take.”
But the oral arguments before the federal circuit court are not necessarily just a pit stop on the road to the nation’s highest court.
“Everything after that is pretty much speculation,” Reyes said.
The April 10 hearing could result in an overturning of U.S. District Judge Robert Shelby’s Dec. 20 order declaring Utah's Amendment 3 unconstitutional. It also could end with the appeals court upholding the Shelby decision.
If that happens, Reyes does not intend to see a repeat of the chaos that ensued late last year, when same-sex marriage briefly became legal in Utah.
“We will ask for a stay prior to the decision being rendered,” he said.
That did not happen prior to the release of Shelby’s order, leading individual counties to begin processing marriage licenses for same-sex couples. An emergency stay from the U.S. Supreme Court put a halt to that in early January.
This week, the legal team tasked with defending Amendment 3 met behind closed doors for mock arguments. In something akin to a dress rehearsal for lawyers, legal minds stood in for the appellate judges and attempted to pick apart the state’s case.
“It’s not unlike when I coach any sport, particularly Little League,” Reyes said. “I always tell my team, ‘I’m going to make practice so hard for you that when you actually get on the field or the court, it’s going to seem even easier than practice.’”
All sides deserve to have the process unfold to the point where we have some clarity from the United States Supreme Court. Ultimately, I think that's what it will take.
–Utah Attorney General Sean Reyes
One such moot court took place Monday at the state Capitol. Reyes also said they will conduct additional moot courts with the attorney hired to argue on the state’s behalf, Gene Schaerr.
“We’re conducting some here in the state of Utah, and then we’re taking Gene to the East Coast to be grilled,” Reyes said.
The lead attorney for the plaintiffs in the case, Peggy Tomsic, also plans to include moot court in her preparation regime during the two weeks leading up to oral arguments.
“It is your job as the person arguing the case to be totally prepared, not only in terms of making your arguments but being able to fully and adequately answer any questions the court may have so that they feel that you’ve been responsive to whatever issues or concerns they may have,” she said.
More than just doing dry runs, Tomsic contends the preparation involves reviewing all of the relevant legal material. In a case with such high import and attention as Utah’s Amendment 3 appeal, it’s a daunting task.
“That process involves basically reading the critical legal authorities, whether they be constitutional, statutory or case law,” she said.
That process is also made more difficult by not yet knowing which three judges will sit on the panel. They are randomly selected from a pool and could come from any of the states represented by the 10th Circuit: Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah.
“Every panel in every case is different," Tomsic said. "I have had cases where I have gotten three words out of my mouth in my argument and never been able to come back to my outline and been peppered with questions. I’ve had oral arguments where I get one or two questions.”
The same panel selected for Utah’s appeal will also hear the Oklahoma same-sex marriage case one week later, on April 17. Following the oral arguments, the three judges will meet to discuss their positions. One will then draft a majority opinion. One of the three could dissent.
“I just don’t know what they’re going to do,” Tomsic said.
In the meantime, court clerks are busy reviewing the 54 amicus briefs filed in the case. A former clerk for the 10th Circuit, Michelle Mumford, says the clerks will also be pulling relevant prior cases cited in the briefs and presenting that information to the judges.
“Likely on a case of this import, more than one clerk is assigned to be reading all of the background information. The judges likely are also reading the briefs,” she said.
Mumford, who now works as associate dean of admissions at BYU's J. Reuben Clark Law School, believes the judges assigned to the case will weigh the arguments on their merits, not on personal beliefs.
“They want to make sure that they are either teeing up their case for proper review or that they’re really protecting what they have and they do that by limiting their opinion, by making it as narrow-reaching as possible,” Mumford said.
That could also mean sending the case back to Shelby if the oral arguments reveal technical or factual errors in his handling of it. However, Tomsic doesn’t expect that to happen.
“I would be stunned if it got back to him for that reason,” she said.
Either the state or the plaintiffs might also request a review by the full 10th Circuit, not just the three judges assigned to the case. An "en banc" session would be rare, and neither side has yet revealed if they would make such a request.
“Strategically there may be some reasons not to request that,” Reyes said. “One or the other side may choose to petition the Supreme Court directly for a 'writ of certiorari,' knowing with the timing of things that the October term would be possible and would be looming.”
But the Supreme Court could decline such a writ. Mumford said the justices prefer to accept cases where the circuit courts are in disagreement. In such a circumstance, Utah’s case being ahead of several others in the appeals process could give the high court pause.
“The court might say that there are no circuits yet that are disagreeing, there’s no reason to take this appeal,” Mumford said. “It might want for that reason to have the courts kind of percolate with this issue until there are more decisions out there.”
Tomsic agrees that the same-sex marriage cases on appeal from states including Utah, Oklahoma, Texas, Virginia and Michigan could make the difference in pressing the Supreme Court into deciding the issue for the entire nation.
“I think it depends on where all those circuit courts come down. That we do not know,” she said.
