We're preparing for the Supreme Court, even though we hope we could win at the 10th Circuit and it could stop there. —Utah Attorney General Sean Reyes
SALT LAKE CITY — Utah will take center stage in the national debate on marriage Thursday when attorneys for the state and three gay and lesbian couples argue their opposing beliefs before a federal appeals court.
Barely more than a year after Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's ban on same-sex marriage in federal court, the Denver-based 10th Circuit Court of appeals will hear oral arguments in the case.
A three-judge panel will decide whether to confirm or reverse U.S. District Judge Robert J. Shelby's decision last December that upended the state's voter-approved Amendment 3 defining marriage as between a man and a woman. He ruled the law violates the due process and equal protection clauses of the 14th Amendment.
Shelby was 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 last summer in U.S. v. Windsor, a case that will likely be a focal point in Thursday's hearing. Utah appealed Shelby's decision and obtained a stay from the high court but not before about 1,300 same-sex couples were married in Utah.
Utah's case is a week ahead of a similar one in Oklahoma, which is scheduled for oral arguments in the 10th Circuit on April 17. The same three judges will hear both cases.
The 10th Circuit isn't expected to rule for several weeks. Both sides say the case appears headed for the Supreme Court regardless of the appeals court decision. The high court's stay on gay weddings in Utah would remain in place.
"We're preparing for the Supreme Court, even though we hope we could win at the 10th Circuit and it could stop there," said Utah Attorney General Sean Reyes, who plans to attend the hearing but not argue the case.
Gene Schaerr, an appellate lawyer from Washington, D.C., who Reyes hired for the case, will represent the state. Salt Lake attorney Peggy Tomsic will argue for the plaintiffs.
Both have filed lengthy written arguments with the 10th Circuit and will have 30 minutes each in the hearing to hit their main points while fielding questions from Judges Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes.
"Before our briefs were filed, most political pundits and most legal prognosticators said you guys have no chance whatsoever," Reyes said.
But, he said, scholars across the spectrum have since told the state, "We may not agree with what you're saying, but you've put together a compelling brief with solid arguments, and we're changing our view of how this is going to go."
Salt Lake appellate lawyer Troy Booher said when the written briefs are as good as they are on both sides of the Utah case, the attorneys don't stray too far from them in oral arguments. The judges expect them to "skip right to the hinge points."
Booher said he sees the case being decided on whether there is a fundamental right to same-sex marriage and whether there is a rational basis for Amendment 3.
Despite what the parties want to get across, the judges could control the discussion with their questions. Lucero, particularly, likes to engage the lawyers, said Booher, who has appeared before the 10th Circuit.
"Our whole role in doing oral argument is to answer questions the judges may have or to help them in any way we can in reaching the decision we believe should be reached," Tomsic said.
The marriage debate is packed with emotion, but she said the lawyers need to focus on the issues before the court, and the Windsor case figures to play a prominent role because it's an area where the two sides fundamentally disagree.
Both parties believe it provides the analytical framework and rational analysis to determine the outcome, but that doesn't mean everything rests on Windsor, Tomsic said.
"I think the judges will be most interested in how they interpret the Windsor case," said Cliff Rosky, a University of Utah law professor. "That's the subject that's going to dominate the day."
In Windsor, the justices struck down the section of 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.
Utah contends Windsor also recognizes the state's authority to define and regulate marriage. The plaintiffs argue that any state definition of marriage must be constitutional.
Bill Duncan, a lawyer and director of the Sutherland Institute's Center for Family and Society, said the state would have to convince the appeals court that Shelby read too much into the DOMA decision.
"And point out the question of novelty, that the appeals court really ought not make the announcement that all states have to have same-sex marriage," Duncan said.
Utah could raise concerns about federalism and that states have the key role in determining what valid marriages are, he said.
Duncan said the plaintiffs would want to convince the appeals court that Shelby "didn't do anything crazy." They might play to the theme that the Supreme Court wants to move toward legalizing same-sex marriage based on the DOMA ruling.
"The real meat of this is to convince the appeals court they're doing the bidding of the Supreme Court, even if the Supreme Court hasn’t said that in so many words," he said.
Duncan, Rosky and Booher are more than interested observers in the case. They were among the more than 50 people, organizations and coalitions that filed amicus or friend-of-the-court briefs.
Duncan filed for the Sutherland Institute, a conservative Salt Lake political think tank that supports traditional marriage. Rosky and Booher represent Equality Utah and the Utah Pride Center, which back same-sex marriage.
Some of the amicus parties requested time to make arguments at Thursday's hearing, but the court turned them all down.
That doesn't mean their points of view might not come up. Booher said judges sometimes find outside arguments intriguing and could ask the state or the plaintiffs about them.
Contributing: Richard Piatt