Utah judge could be first to rule on state marriage law since DOMA

Published: Wednesday, Dec. 4 2013 6:10 p.m. MST

Kody Partridge, left, and her partner Laurie Wood leave the Frank E. Moss United States Courthouse Wednesday, Dec. 4, 2013, in Salt Lake City. A challenge to Utah's same-sex marriage ban by three gay couples is back in court Wednesday as a federal court judge heard arguments in a case being closely watched around the country. Partridge and Wood are plaintiff's in this case.

Rick Bowmer, Associated Press

SALT LAKE CITY — U.S. District Judge Robert Shelby wondered aloud Wednesday whether he would be the first federal judge to rule on a state's marriage law since the U.S. Supreme Court struck down part of the Defense of Marriage Act earlier this year.

"Yes, your honor, you would be the first. Congratulations," replied Peggy Tomsic, an attorney for three gay and lesbian couples who filed a lawsuit against Utah's definition of marriage as being between one man and one woman.

Tomsic's answer drew laughter from a packed federal courtroom where she made an impassioned argument for Shelby to strike down the state constitutional amendment that voters approved in 2004. She contends it violates the couples' 14th Amendment rights to equal protection and due process.

"This case embodies the civil rights movement of our time," she said.

Though not as dramatic, assistant Utah attorneys general Phil Lott and Stan Purser were no less emphatic in their defense of the law. The state wants the judge to dismiss the case.

"It's up to the citizens of the state of Utah to decide what marriage is. There is no constitutional right to same-sex marriage," Lott said.

Shelby, who vigorously questioned lawyers on both sides, clearly understands the gravity of the decision he said he hopes to render as early as January.

"I certainly have my hands full," he said as the 3 ½-hour hearing ended.

Shelby's ruling would not only have ramifications in Utah, but would be used in marriage law cases across the country. And either way, the losing side will no doubt take his decision to the 10th Circuit Court of Appeals in Denver.

Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed the lawsuit in March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.

All three lawyers on Wednesday drew from the Supreme Court decision in U.S. v. Windsor, though they came to opposite conclusions about what it means for Utah's law.

In that case, the justices in June struck down the section of the DOMA that defines marriage as between a man and a woman for purposes of federal law, ruling that the government must give the same benefits to gay married couples as it does to heterosexual married couples.

Tomsic contends the "analytic framework" and factors the nation's high court considered in that case are identical to those in Utah's "marriage discrimination" laws. Lott countered that it didn't take away the state's "role and power" to define marriage.

In her argument, Tomsic called Utah's Amendment 3 the "most draconian deprivation of rights in the United States." She cited landmark U.S. Supreme Court civil rights cases Brown v. Board of Education, which desegregated schools in the South, and Loving v. Virginia, which invalidated laws banning interracial marriage.

There is a clear line of authority from the Supreme Court that says popular votes can't decide citizens' constitutional rights, Tomsic said. "If that were so, we would still be banning racially integrated marriages in the South, I believe," she said after the hearing.

Tomsic also questioned the motivation behind Utah's voter-approved definition of marriage, saying it's grounded in political and religious bias.

"They visualize sexual conduct and they want it stopped," she told the judge.

Purser said just because Utah defines marriage as between a man and a woman doesn't mean "everyone who voted for it hates everyone else."

Utahns approved Amendment 3 with 66 percent of the vote. "It's impossible to consider that 66 percent of the population of Utah is bigoted against homosexuals. It's simply not the fact," Lott said.

Purser argued that Utah has a legitimate interest to define marriage as it does because it promotes responsible procreation and is the "gold standard" for rearing children.

Lott said afterward that the "preferred" way and the best environment to bring up children is with a biological mother and father.

"It's the situation that's existed for millenia. It's the traditional way that families are organized," he said.

In court, Shelby at one point asked Lott the difference between the rights of a same-sex or heterosexual couple to get married.

"Procreation is the difference," Lott said. "A same-sex couple is not going to reproduce."

Tomsic took issue with that stance.

"Procreation has never, ever, ever been a condition for a marriage license," she told the judge. Same-sex couples, she said, can and do have children in several ways.

After the hearing, Sbeity and Kitchen said they didn't think the state's arguments about procreation have any relevance to their case.

"Our case is that we want to get married," Sbeity said. "We did not touch on procreation or children at all."

Added Kitchen, "We're not fighting about children. It's about getting married."

Email: romboy@deseretnews.com

Twitter: dennisromboy; DNewsPolitics

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