Federal appeals court is hearing equality cases

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Mary Bishop and Sharon Baldwin

Just over a year after the U.S. Supreme Court heard arguments in two landmark marriage equality cases, the U.S. Court of Appeals for the Tenth Circuit in Denver heard arguments in what could be the next landmark equality case to go to the High Court.

The appeals court on April 10 heard Kitchen v. Herbert, the Utah case appealed by the state after a federal judge in December overturned a voter-approved constitutional amendment barring same-sex marriage in the heavily Mormon state.

The same appeals court was scheduled on April 17 to hear oral arguments in another marriage equality case, Bishop v. Smith, from Oklahoma.

“All eyes are on the 10th Circuit as unprecedented momentum for marriage equality continues nationwide,” said Brian Silva, executive director of Marriage Equality USA.

These are just two of the more than 60 cases pending in 29 states — plus the U.S. territory of Puerto Rico — challenging state anti-gay marriage laws. A total of 250 plaintiffs seek to overturn marriage bans in their states — including same-sex couples working with the American Civil Liberties Union of Wisconsin to topple the 2006 constitutional amendment defining marriage as the union of a man and a woman.

The cases were filed or amended after last June, when the U.S. Supreme Court overturned the federal marriage ban in the 1996 Defense of Marriage Act and cleared the way for the dismantling of California’s anti-gay marriage amendment.

Since those High Court rulings, nine out of nine federal judges have overturned anti-gay marriage amendments.

Now, in addition to the Utah and Oklahoma cases, seven other lawsuits — from Nevada, Texas, Virginia, Tennessee, Kentucky, Ohio and Michigan — have reached the federal appeals court level.

Arguments are scheduled in the Virginia case, Bostic v. Schaefer, for May 13. In that case, the state attorney general, with support from the governor, has decided not to defend the anti-gay amendment.

Filings in the Kentucky and Tennessee cases are due on May 7.

Any one of the cases could be appealed to the U.S. Supreme Court, including Wolf v. Walker in Wisconsin. In that case, the ACLU is representing eight Wisconsin couples seeking  to have their marriages recognized.

Meanwhile the only states not facing challenges to anti-gay marriage laws are Alaska, Georgia, Montana, North Dakota and South Dakota.

Same-sex couples can marry in 17 states and the District of Columbia.