A Crack in Legal Unanimity for Gay Marriage
Wednesday’s gay marriage ruling contained two historic firsts: It was the first appellate decision for gay marriage since the U.S. Supreme Court struck down the Defense of Marriage Law exactly one year ago, and it also marked the first time since then a federal judge has argued for keeping a state ban on same sex marriages.
Justice Paul J. Kelly, Jr. was in the minority in his opinion as the two other judges on the 10th Circuit Court of Appeals panel found the U.S. Constitution protects the rights of gay couples to marry. Kelly has broken the string of 16 state and federal judges who sided with gay marriage advocates in cases across the country over the past year.
Legal observers and friends both say that’s not a surprise. "He’s not afraid to be the only guy taking a position if he believes it’s correct," said Hal Stratton, a former New Mexico Attorney General who served with Kelly in the state legislature in the late 1970s.
Kelly, 73, is a Republican and appointee of President George H.W. Bush who is known for his fondness for bow ties, withering questioning at oral argument and willingness to rule against law enforcement and for civil rights. On Wednesday, in his 21-page dissent, Kelly warned that his colleagues were overreaching in striking down Utah’s voter-approved gay marriage ban.
Creating a national mandate for gay marriage, even in states where it is unpopular, "turns the notion of a limited national government on its head," he wrote, adding later: "We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the 14th Amendment."
The dissent heartened gay marriage opponents, who saw a hope of ending their year-long losing streak and puncturing the aura of inevitability that now surrounds same-sex marriage. "We are at a new level and the Courts of Appeal tend to be more thoughtful and deliberate than the trial courts," said National Organization for Marriage president John Eastman, saying he expects more opinions like Kelly’s.
It did not surprise Blain Myhre, a Denver appellate attorney who has argued multiple cases before Kelly. "He may have a more limited view of the role of the federal courts than a more liberal judge," Myhre said. But, he added, "I don’t view him as an ideologue."
Nancy Leong, a University of Denver law professor who watches the circuit, said she was surprised because Kelly has been sympathetic to some plaintiffs alleging discrimination based on their gender or disabilities. "I was especially surprised that he was willing to become the first judge to say we shouldn’t strike down a same-sex marriage ban."
Kelly has never been afraid of charting his own course. The son of a prominent judge in Long Island, New York, he graduated from Notre Dame University and then Fordham law school and took a job in the small, remote southeast New Mexican town of Roswell. In 1976, he ran for the New Mexico legislature and won, even though Democrats outnumbered Republicans in his district 2-1, according to an article about him written by a former clerk.
In the statehouse, Kelly was a strong foe of abortion rights but far from a doctrinaire conservative, Stratton recalled. He remembered that, when the legislature reinstituted the death penalty, Kelly inserted several provisions to limit its application.
After two terms, Kelly moved to Santa Fe to run his firm’s office there and left elected office. He joined the volunteer fire department in his rural community outside the city and even well into his 60s would dash out of dinners to rescue people from car crashes. In a 2008 interview, Kelly, then 67, told the Santa Fe New Mexican he worked out four times a week. "I work to keep up with the younger guys ... We’re swinging axes at metal walls and if you didn’t keep in shape, you’d die."
President Bush appointed Kelly to the 10th Circuit in 1991. His highest-profile case was when he presided over Oklahoma City bomber Timothy McVeigh’s appeal. U.S. marshals accompanied him and his wife on an airplane from Albuquerque for the hearings in Denver, where the circuit is based. In his interview with his former clerk, Kelly also proudly cited his opinion in a 1998 case where he ruled that police cannot offer plea deals in exchange for courtroom testimony. Federal prosecutors and other law enforcement agencies were outraged and the full 10th Circuit reversed Kelly’s opinion.
Kelly didn’t budge, writing a dissent from the new opinion. "Courts," he wrote, "must apply unambiguous statutes as they are written."