A federal judge could decide within days whether to legalize gay marriage in Wyoming, and opponents are already hinting that he might rule against them.
“The state’s position is we would like to reserve our right to appeal to a higher court,” Jared Crecelius, a Wyoming senior assistant attorney general, said during a Thursday morning hearing in Skavdahl’s federal courtroom in Casper.
However, during a Thursday night debate on Wyoming PBS, Republican Gov. Matt Mead, a defendant in the case, said he is not interested pursing the matter further after Skavdahl rules.
"The answer is no, we shouldn't appeal the ruling," Mead said.
At the conclusion of the hearing, Skavdahl acknowledged that his order could have grave consequences if incorrect. He said he needed to look into a few issues and will release the order by 5 p.m. Monday.
Crecelius was part of a five-member legal team that included a Laramie County attorney. In addition to Mead, Laramie County Clerk Debra Lathrop and two state officials were defendants.
The defense faced a seven-member team representing the plaintiffs, four same-sex couples and Wyoming Equality, a group running a campaign in support of gay marriage in Wyoming.
The hearing lasted just over 60 minutes.
The plaintiffs asked Skavdahl to find that Wyoming’s current law, which defines marriage as between a man and woman, violates the U.S. Constitution and that county clerks should issue same-sex-marriage licenses immediately.
They also hope the state will have to recognize same-sex marriages performed outside Wyoming.
The hearing followed an Oct. 6 U.S. Supreme Court decision not to hear appeals from five states that want to ban gay nuptials.
That means lower courts’ decisions to legalize such marriages are the law of the land in those states. Two of the states, Utah and Oklahoma, are in the same lower court jurisdiction as Wyoming, the Denver-based 10th Circuit Court of Appeals, which called marriage a fundamental right.
Marriage bans violate the 14th Amendment, the appeals court said.
“We think the time has come,” said Tom Stoever, an attorney for the plaintiffs. “The law is clear.”
But the state contends that the 10th Circuit was wrong in calling marriage a fundamental right. The U.S. Supreme Court has not ruled that same-sex marriage is a fundamental right.
The state doesn’t want a quick ruling in favor of gay marriage, Crecelius said, because of the consequences to state and local governments. It wants the time afforded to the cases in Utah and Oklahoma.
The 10th Circuit’s ruling was made by a three-judge panel and not en banc, Crecelius noted, or full court.
But after the hearing, Stoever said en banc hearings in the 10th Circuit are extremely rare. In the cases of Utah and Oklahoma, the states opted to appeal the three-judge panel's decision directly to the Supreme Court instead of asking for such a review.
Skavdahl wanted to know why the state needed more time.
"What is there left for you to uncover in terms of law or facts? he asked.
Crecelius said he didn't know yet.
"Did the state of Wyoming submit an amicus brief in each of those?" Skavdahl asked, referring to the Utah and Oklahoma cases.
"No, we did not, your honor," Crecelius said.
Laramie County Clerk Debra Lathrop, the only person to testify in the hearing, said she needed guidance on whether to issue the licenses in light of the Supreme Court decision. Several couples have tried to get married since the Supreme Court decision, she said.
“We accepted the applications, but we did not issue any marriage licenses,” she said.
The mood in the courtroom was somber. At the beginning of the hearing, Skavdahl acknowledged that gay marriage is an emotional issue.
“I want to emphasize to all this is a court of law, not a court of emotion,” he said.
About 60 people watched the proceedings, most of whom support same-sex nuptials. In a corner sat Dennis and Judy Shepard, parents of Matthew Shepard, a gay University of Wyoming college student who was fatally beaten in 1998.
Kari Lysdahl and Jessica Lopez traveled from Jackson to watch.
“I’m here to see history and see the Equality State truly become equal,” Lysdahl said.
Pamela RW Kandt, a Casper nondenominational chaplain who is close to the Episcopal Church, updated a marriage service that she can use for same-sex couples. She is ready to marry any couple who want to be married if same-sex marriage becomes legal in Wyoming.
People of faith are praying for marriage equality in Wyoming, she said.
“There are Catholics who are praying,” she said. “There are Episcopalians who are praying. There are Unitarians who are praying.”
Plaintiff Annie Guzzo tried to obtain a marriage license in Laramie County with her partner, Bonnie Robinson.
“I’m delighted we got a chance to be in court,” Guzzo said. “I think we got beautiful representation, and it was a wonderful thing in Wyoming.”