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Same-sex marriage in Utah now in federal judges' hands

Published: Thursday, April 10 2014 11:10 a.m. MDT

Euell Santistevan of Denver holds a rainbow flag during a protest outside the Federal Courthouse in downtown Denver on Wednesday, April 9, 2014. The protest, sponsored by Support Marriage Equality in Colorado, was held as a federal appeals court weighs inside the Denver courthouse whether to give at victory to gay couples' right to marry in Utah and Oklahoma.

David Zalubowski, Associated Press

DENVER — The question of same-sex marriage in Utah rests — for now — with three federal appeals court judges who probed and picked at arguments on both sides of the emotional issue in a hearing Thursday.

Attorneys for the state and three gay and lesbian couples had 30 minutes each to make their cases before the 10th Circuit Court of Appeals. In addition to highlighting points in their lengthy written briefs, both sides fielded rigorous questions from Judges Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes.

Much of the debate centered on the lawyers' interpretation of the U.S. Supreme Court decision in U.S. v. Windsor last summer that struck down the section of the federal Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.

The judges also explored federalism, the fundamental right to marry, Utah's definition of marriage and its rationale, and what level of judicial scrutiny to apply to the case.

In his questioning, Holmes noted points of law on which either side could lose.

Utah contends the Windsor decision recognizes the state's power to define and regulate marriage. The plaintiffs argue that the state's definition of marriage is unconstitutional.

"The issue really is one of authority," Gene Schaerr, the state's lawyer, told the judges.

Schaerr described Utah's "childcentric" vision of marriage that sends the message that a mother and a father are important.

"When you redefine marriage in genderless terms, you dilute that message and dilute that norm in the law," he said.

Late Wednesday, the state filed a letter with the court to distance itself from a controversial study by University of Texas sociologist Mark Regnerus cited in its opening brief. Regnerus found that children in same-sex households were more likely to have problems — welfare dependence, less education, marijuana use — than young adults from stable families led by heterosexuals.

Holmes asked Schaerr why the state was "backpedaling" from the study. Schaerr said it's not relevant to the state's case and the "bottom line" is studies in that area are inconclusive.

Peggy Tomsic, the plaintiffs' attorney, told the panel that Utah's law defining marriage as between a man and a woman is discriminatory and violates same-sex couples' rights to equal protection and due process under the 14th Amendment.

Tomsic said the state has failed to show that same-sex parents aren't as good as heterosexual parents.

"There isn't a single social science study they've cited that is on point," she said.

It will likely be months before the panel issues a ruling, which will become law in the six states in its jurisdiction — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — unless it is stayed. New Mexico's Supreme Court has already legalized gay marriage in that state.

The plaintiffs — Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call — sat behind their lawyers with their arms around each other's shoulders during the hearing in the packed courtroom.

As the crowd waited for court to start, Utah Attorney General Sean Reyes walked across the aisle and spoke to the plaintiffs.

"I wished them the best. I told them I knew their families were as important to them as my families are important to me, and it's not personal by any means," Reyes said outside the Byron White United States Courthouse.

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