Two Republican appointees, Judges Paul Kelly and Jerome Holmes, will hear a case challenging the state of Utah’s refusal to grant marriage licenses to same-sex couple, along with Democratic appointee Judge Carlos Lucero. The case will be heard on April 10.
Although none of these three judges have decided a case that is directly on point, ThinkProgress’ review of the three judges’ records suggests that supporters of marriage equality should be cautiously optimistic that at least two of these judges will side against discrimination. To date, every single federal judge to consider the issue since the Supreme Court struck down the Defense of Marriage Act in 2013 has sided with equality.
One former Tenth Circuit law clerk told ThinkProgress that he would be “shocked” if Judge Lucero “didn’t vote the way all the other judges have voted.” Lucero has had several gay clerks and is “pretty liberal” on social issues.
Judge Kelly will likely approach this case from the other end of the political spectrum. Kelly is “pretty darn conservative,” according to the Tenth Circuit clerk we spoke to — an impression that is borne out by Kelly’s vote in the Hobby Lobby case now being considered by the Supreme Court. He voted to allow religious business owners to deny birth control coverage to their employees.
On gay issues specifically, however, Kelly’s record is thin. His most significant gay rights case is probably Bryce v. Episcopal Church in the Diocese of Colorado, in which an Episcopal youth minister experienced anti-gay comments at work and was phased out of her job after she married her same-sex partner. Although Kelly voted against this woman in Bryce, the Supreme Court has since shown a great deal of reluctance to permit the government to regulate internal church matters, so Kelly’s vote in this case probably does not offer much of a window into how he would decide the question of marriage equality. Nevertheless, Kelly is almost certainly the most conservative judge on the Utah panel.
That leaves Judge Holmes in the middle. Shortly after President George W. Bush nominated Holmes to the federal bench, several civil rights organizations opposed him largely due to his opposition to affirmative action and his support for the death penalty. Similarly, one Capitol Hill staffer described Holmes, who is African American, as “the next Clarence Thomas” at the time of his confirmation.
Since joining the bench, however, Holmes appears to have charted a more moderate course than Thomas. The former Tenth Circuit clerk we spoke with said that he is “not a bad judge to have on your panel,” and described him as conservative but “open-minded.” Perhaps most significantly, Holmes was one of the two federal appellate judges who refused to stay the trial court’s decision ruling in favor of marriage equality when Utah sought a stay last December. So he may have already tipped his hand in this case and revealed that he will support equality now that he is considering the case on the merit.