Same Sex Marriage? Not So Fast Appellete Court Judge Issues Dissent Otherwise

Yesterday marked the first time since then a federal judge has argued for keeping a state ban on same-sex marriages.

Judge Paul J Kelly, Jr.

Judge 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 arguments 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.”

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 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."

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."