In the past month, two of the nation's most entrenched conservative states — Utah and Oklahoma — reluctantly found themselves at the forefront of the gay marriage debate after federal judges declared their laws banning such nuptials unconstitutional.
Now, both of those cases are headed to the Denver-based U.S. 10th Circuit Court of Appeals, one of the most politically divided appeals courts in the nation and a panel that finds itself in the national spotlight.
The court has five judges appointed by Democratic presidents and five by Republican ones. A central figure on the court personifies that ideological split: Judge Scott Matheson Jr., a former federal prosecutor and the Mormon son of a former Utah governor, was appointed by President Barack Obama.
"Who knows how the 10th Circuit Court will review this issue," said Justin Pidot, a professor at the University of Denver's Sturm College of Law.
Because circuit justices are randomly selected to handle appeals cases, the court has issued widely divergent rulings on very similar types of cases, such as two police brutality cases, said Alan Chen, a professor of constitutional law at the Sturm College of Law.
"I think unpredictable is one way to say it," Chen said. "It wouldn't be my first choice of circuits."
The court could use three-judge panels to review the Oklahoma and Utah cases, but the full 10-member court also could decide to hear them, he said.
At least one other high-profile national issue is under review by the 10th Circuit. The Denver-based Little Sisters of the Poor, founded by Catholic nuns, has a pending lawsuit against the federal government. The nuns oppose the Affordable Care Act's contraceptive mandate. It is one of many similar cases filed across the country.
So far, however, the only cases in which a federal judge has struck down a state's gay-marriage law are in the 10th Circuit.
U.S. District Judge Robert Shelby ruled Dec. 20 that Utah's 2004 ban on same-sex marriage violated gay and lesbian couples' constitutional rights. U.S. District Judge Terence Kern struck down Oklahoma's gay marriage ban on Tuesday. Colorado's constitution has a similar ban.
Often, the ultimate goal of litigants is to see an issue rise to the U.S. Supreme Court. Filing multiple cases on the same issue enhances the chance the high court will review an issue such as gay marriage.
Legal experts said politics is probably at the root of decisions to file gay marriage lawsuits in two arch-conservative states, but plaintiffs may be motivated by an unusual strategy.
National advocacy groups sometimes target certain federal circuits with track records favorable to their positions in a process called "forum shopping," Pidot said. Groups funding lawsuits for liberal causes are more likely to file in the 9th Circuit Court of Appeals based in San Francisco, while conservative groups are more inclined to take their business to the more conservative 5th Circuit Court of Appeals encompassing Texas, Mississippi and Louisiana, he said.
The cases in Utah and Oklahoma appeared to be driven more by the ardency of popular opinion rather then the political bent of judges, Pidot said. It means the outcome is less predictable.
"Having a split circuit (court) significantly changes the picture," he said of the 10th Circuit. "It's a high-stakes game."
The prospect of voters overriding recent constitutional amendments in Utah, dominated by Mormon influence, and Oklahoma, called the buckle of the Bible Belt, would be difficult at best, Pidot said. The only plausible chance to change law in those states would be in federal court.
Twenty-nine states, including Colorado, Utah and Oklahoma, have constitutional prohibitions against gay marriage, and four other states do not permit it. Seventeen states have legalized gay marriage, eight just in the past year.
The 10th Circuit will now review Shelby's ruling in Utah on an expedited basis. No date has been set for oral arguments. The case will undoubtedly be appealed to the Supreme Court, where the swing vote could be made by a judge nominated by a Republican president.
U.S. Supreme Court Justice Anthony Kennedy, a Catholic and Ronald Reagan appointee, sided with four Democrat-nominated justices in a landmark decision last summer that gives both sides of the gay marriage debate room for hope.
In June, Kennedy wrote the landmark decision striking down the 1996 federal Defense of Marriage Act barring recognition of gay marriages in the Windsor vs. United States case out of New York. He wrote that the law violated the due-process clause of the Fifth Amendment: "DOMA instructs ... all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others."
The DOMA decision gave hope to gay couples that the Supreme Court would be willing to acknowledge a constitutional right to gay marriage, Pidot said.
Nathan Woodliff-Stanley, executive director of the American Civil Liberties Union in Colorado, said the decision is part of a turning tide in national perspective about gay rights.
"I think there has been a very significant shift in public opinion about (gay marriage equality)," Woodliff-Stanley said.
But the DOMA decision also established the right of individual states to make decisions about marriage, said John Eastman, chairman of the National Organization for Marriage.
Just as New York residents can embrace gay marriage, residents in other states should be entitled to reject it, Eastman said.
Plaintiffs in the Utah case probably believe that the state is a perfect location to make the point that states should not be allowed to dictate marriage rights because of its unpopular history of polygamy.
"I hope that their strategy will backfire on them," Eastman said.
Key issues facing the 10th Circuit
Gay marriage: More than three dozen cases challenging bans in 20 states are underway, with cases in Utah and Oklahoma landing before the 10th Circuit. In 2004, Oklahoma's same-sex marriage ban was passed by 76 percent of voters and Utah's with 66 percent.
Contraception mandate: Denver's Little Sisters of the Poor order is challenging the requirement that employer-provided health insurance include birth-control coverage. They view contraception as a sin and argue that such a provision violates their religious freedom.
Judges of the 10th Circuit
Chief Judge Mary Beck Briscoe
Judge Paul J. Kelly Jr.
Judge Carlos F. Lucero
Judge Harris L. Hartz
Judge Timothy M. Tymkovich
Judge Neil M. Gorsuch
Judge Jerome A. Holmes
Judge Scott M. Matheson Jr.
Judge Robert E. Bacharach
Judge Gregory A. Phillips